World Trade Priorities

Lord Judd: asked Her Majesty's Government:
	What are now their world trade priorities following the collapse of the conference in Cancun.

Lord Sainsbury of Turville: My Lords, the Government's priority remains to ensure a successful conclusion to the Doha round of the World Trade Organisation negotiations, which would provide a freer and fairer international trading system that addresses the interests of developing countries. The Government are continuing to work with EU partners, the European Commission and other WTO members to get the WTO negotiations back on track.

Lord Judd: My Lords, does my noble friend agree that the present situation is grotesque, in which the richest countries, with only 14 per cent of the world's population, enjoy 75 per cent of the world's exports, while the poorest countries, with 40 per cent of the world's population, account for only 3 per cent of world trade? Does he further agree that that provides no basis for world stability and security? Will the Government now ensure that development invariably becomes central to trade policy, that non-reciprocity and differentials favouring poor countries will be promoted, and that the common agricultural policy—which positively harms agriculture in the poorest countries—is fundamentally reformed? Above all, can my noble friend assure us that, in future, the Government will treat as a priority the needs of the poorest countries of the world rather than the preoccupations of the rich?

Lord Sainsbury of Turville: My Lords, I agree that the distribution of wealth in the world is greatly distorted and leads to poverty, which is to be deplored. The most important issue in regard to the Doha negotiations is the question of getting rid of agricultural subsidies. That must be a major focus because, more than anything else, their removal would help the poorer countries. Further, right from the start it has been recognised that the needs of the poorest countries are central to the Doha negotiations.

Baroness Rawlings: My Lords, what meetings have taken place in the run-up to the senior officials' meeting to be held on 15th December in Geneva—only three weeks away? Have representatives from the United Kingdom attended those preliminary meetings?

Lord Sainsbury of Turville: My Lords, the Cancun conference agreed a new deadline of 15th December to resolve those issues which could not be agreed. Negotiations, undertaken in restricted groups, are now continuing in Geneva. The atmosphere in those negotiations is positive, but substantial progress has not yet been made.

Lord Hannay of Chiswick: My Lords, does the Minister agree that the highest priority must be to ensure that the European Union should, at a very early stage, resolve any ambiguity in its attitude and make it absolutely clear at the summit to be held in Brussels in December that it favours a resumption of the Doha round to take place as early as possible?

Lord Sainsbury of Turville: My Lords, there is no question of the fact that we believe that the Doha Round should continue. While the collapse of the Cancun conference was disappointing, along with all other countries we are quite clear that it should not be allowed to become a fatal setback and that we need to get the discussions back on track as soon as possible. I do not think that there has ever been any question about that; it is a common position taken by other countries.

Baroness Northover: My Lords, can the Minister tell the House whether the Government are using their special relationship with the United States to persuade the Americans to drop not only their own tariffs on steel imports, but also to engage in multilateral talks on trade rather than bilateral talks, which benefit the stronger rather than the weaker countries?

Lord Sainsbury of Turville: My Lords, it is well known that the Government are taking a strong line on the question of the US steel tariffs, which the World Trade Organisation has now rejected, declaring them to be illegal. Of course we are keen to ensure, so far as any country is concerned, that this whole round should not degenerate into any form of bilateral deal as opposed to continuing with multilateral agreements.

Lord Tomlinson: My Lords, given that my noble friend on the Front Bench mentioned in his first response the imperative of ensuring agricultural reform, can he tell us with some precision the actions taken by Her Majesty's Government in the recent budget round to reduce the proportion of the European budget spent on agriculture? Further, can he say whether he deems that agricultural reform is anything like approaching satisfaction?

Lord Sainsbury of Turville: My Lords, as part of the run-up to the discussions in Cancun, the European Union agreed to significant reforms of the common agricultural policy that will mean substantial cuts in trade-distorting support and export subsidies which do so much damage to the whole cause of the developing world. That marked an important start in the negotiations, but no doubt there is further room to continue with the work.

Lord Elton: My Lords, does the Minister agree that the current imbalance in world trade is unacceptable not only on the grounds of compassion, but also unsafe in terms of ensuring the security of this country in a stable world? Does he further agree that any measures to effect a change to that imbalance would be so big that they will affect our own living standards? Have the Government given any thought to talking to the other parties about an agreed policy so that this issue does not become a casualty of successive election campaigns?

Lord Sainsbury of Turville: My Lords, we are discussing trade. It is clear from all the studies undertaken by the World Bank, the European Union and others that if there could be a substantial reduction of, say, 50 per cent in protectionist measures, that could boost the incomes of developing countries by around 150 billion dollars; that is, by three times the level of current aid flows. However, that would not mean that there would be any adverse effect on the position of the developed world in the sense that one of the benefits of free trade is that by reducing tariff barriers, it is possible to increase the total wealth of the world. That is the basis of free trade and it is the basis on which we are negotiating.

Lord Dubs: My Lords, does my noble friend agree that the position of the European Union at Cancun contributed to the breakdown of the talks? Can he give an assurance that the EU now has an agreed position which takes account of the failure of the negotiations at Cancun and which will be a positive basis for the talks to be held during December in Geneva?

Lord Sainsbury of Turville: My Lords, while the trigger for the breakdown of the negotiations at Cancun was the question of the "Singapore issues", a number of other matters were still on the table, the main one being the demands made by the developing world for a further reduction in agricultural tariffs. Obviously we shall be moving forward from the current position. I think that my right honourable friend the Secretary of State made it clear on 17th September in the other place that we would be operating on the basis of the concessions that had already been made, rather than seeking to go back to earlier positions. That means that the WTO agreements on investment and competition are now off the European Union agenda.

Parliament Square: Displays

Baroness Knight of Collingtree: asked Her Majesty's Government:
	Whether they will have discussions with the relevant authorities with a view to the removal of the displays in Parliament Square.

Lord Bassam of Brighton: My Lords, my officials have had discussions with the Metropolitan Police, the Greater London Authority and the City of Westminster about the displays in Parliament Square. The nature and location of these displays means that there is no immediate action that can be taken. The Procedure Committee in the other place has examined the Sessional Orders and Resolutions, including the Sessional Order designed to keep the access to Parliament open. The committee published its report this morning and we will consider its findings most carefully.

Baroness Knight of Collingtree: My Lords, we shall be interested to see the result of that consideration. Is the Minister aware that the dirty and untidy encampment has now become a permanent feature of Parliament Square? Most of the time it is left empty for any protester to take over and use as they will. Is not planning permission necessary for camping arrangements in that area? If so, who gave that permission? If planning permission is not required, can any member of the public park their mobile homes, vans or cars there? Does not the Minister agree that tourists come from all the four corners of the earth to see Westminster? Does he not think that this eyesore is defiling the most beautiful parliament building in the world?

Noble Lords: Hear, hear!

Lord Bassam of Brighton: My Lords, I am not entirely sure that what I am about to say will be the most popular of words uttered in your Lordships' House. While I might agree with much of what the noble Baroness has said, we have to respect the democratic right of people to make their protests and views felt. The Baroness makes a very important point. We shall of course consider the implications of the report issued today.

Baroness Boothroyd: My Lords, who owns the square? Would it not be worth while for the Government to purchase Parliament Square? They could then take action themselves when it is vandalised in this way.

Lord Bassam of Brighton: My Lords, the square is the responsibility of the Greater London Authority. Policing it is a matter for the Metropolitan Police. They obviously keep the situation under careful review but, as long as there is no obstruction to the Houses of Parliament, those who choose to use the square for the purposes of protest can do so.

Lord Dholakia: My Lords, does the Minister agree that demonstration placards and pamphlets in Parliament Square are an expression of our tolerance and democratic values? Should we not protect the rights of those who wish to protest in this way? All the visitors that I have met have marvelled at the patience of the British people in tolerating the situation in Parliament Square.

Lord Bassam of Brighton: My Lords, I agree with much of what the noble Lord has said.

Baroness Buscombe: My Lords, with all deference to what the noble Lord, Lord Dholakia, has said, whose democratic rights are we talking about? Is it reasonable to protect the rights of one individual to the detriment of the well-being of the community at large? Is there not an enormous difference between exercising democratic rights in a spontaneous way—we must all protect freedom of speech—and the quasi-permanent residential situation that we all have to endure at the moment?

Lord Bassam of Brighton: My Lords, I had thought that the noble Baroness was a member of the more tolerant part of the Conservative Party opposite. While she may find it disagreeable to look upon protesters—

Noble Lords: No!

Lord Bassam of Brighton: My Lords, that is how it sounds to noble Lords on these Benches.

Lord Campbell-Savours: My Lords, why should we feel embarrassed to show the world that a vibrant democracy can manifest itself in inconvenient and ugly ways? The exhibits of the demonstrators are not manned overnight. If we want a little order on the site, all we have to do is to ensure that if they cannot be manned they are taken away. This would mean that the site would then remain for demonstrating radical opinions and we would preserve the very democratic nature of the ongoing debate.

Lord Bassam of Brighton: My Lords, that is a sensible way to address the issue. Perhaps it would be a better way of doing things. But it is not for us to determine. The land is not ours. Responsibility for it rests with the Greater London Authority. Westminster Council has sought action on this and has failed so far.

Lord Watson of Richmond: My Lords, can the Minister confirm that the situation has arisen, in part, because two police forces are involved and neither wishes to take responsibility?

Lord Bassam of Brighton: My Lords, as far as I am aware, that is not the issue.

Lord Campbell of Croy: My Lords, while I support my noble friend's proposal, is the Minister aware that posters with the message that "The end of the world is nigh" have been allowed in prominent places in London in the past, although the passage of time has proved the message to be inaccurate at the least?

Lord Bassam of Brighton: My Lords, I am not sure that that requires a ministerial response.

Lord Marlesford: My Lords, the noble Lord, Lord Campbell-Savours, seems to have the answer. It is not people protesting that is objectionable but the permanent camp, which is unoccupied at night. I cannot see any reason why the impedimenta should not be removed when abandoned in the evening, either by the people who have got it, by the police or by other authorities. Is the Minister aware that the report of the House of Commons Procedure Committee, published this morning, recommends that the Government should introduce appropriate legislation to prohibit long-term demonstrations? There may be one or two of us on this side of the House who would support such legislation.

Lord Bassam of Brighton: My Lords, as I made plain earlier, I am aware of the report. I also made plain that we will keep the situation under review. We have not had long to absorb the full import of the report. We have recently addressed some of the issues raised by passing the anti-social behaviour legislation, certain features of which will enable action to be taken when a static demonstration becomes a nuisance. So there are statutes and statutory opportunities available should they be required.

Lord Waddington: My Lords, why could not a public-spirited citizen, of his own accord, go to the site when it is unmanned and remove the litter? Would he not be performing a service for the public rather than committing an offence?

Lord Bassam of Brighton: My Lords, these matters are best dealt with in a quiet and sober manner. While the noble Lord's suggestion may have some attraction, it could create further difficulties.

Student Loans

Lord Dormand of Easington: asked Her Majesty's Government:
	What public financial assistance is available to students applying for admission to university.

Baroness Ashton of Upholland: My Lords, eligible students receive means-tested student loans which in 2003–04 range from £3,165 for students living at home to £4,000 for those living elsewhere and £4,930 for those living away from home in London. From September 2004 around 30 per cent of students will be entitled to a grant of £1,000 per year. In addition, grants and bursaries are available for part-time students, student parents and those with disabilities.

Lord Dormand of Easington: My Lords, I appreciate the Government's attempts in this difficult matter, but does my noble friend agree that having to borrow money from the state to undertake a degree course, which is the present situation, is a considerable deterrent to poorer families? That is one of the most important aspects. Have the Government given any thought to changing the system? Are they giving full consideration to the objections that have been made, and are being made, by the National Union of Students in this matter?

Baroness Ashton of Upholland: My Lords, we do not consider this a difficult matter. There has been a wide-ranging debate, over many months, involving many Members of your Lordships' House who have a real interest in higher education, as well as those outside, to enable the Government to bring forward firm proposals and conclusions on what we might do. The present situation does not deter people from coming to university; numbers are increasing. We are committed to ensuring that there is an increase in student numbers of those who are able to go to university and benefit from it. We have made clear the system we plan to put in place. We have dialogue and discussions with the National Union of Students. It has its views and we have ours.

Lord Wallace of Saltaire: My Lords, does the Minister accept that the increase in those going into higher education has fundamentally, over the past 15 years, consisted of middle-class girls catching up with the proportion of middle-class men and that there is still a major deficit from the working classes? Now that the Government are taking over so many aspects of the education policy of the previous Conservative government, could they not consider an assisted places scheme targeted on the more disadvantaged to help them go to university?

Baroness Ashton of Upholland: My Lords, I am delighted that girls are catching up with and—dare I say it?—overtaking some of the boys in many situations in our society. The system we are proposing is a very good one. It is about ensuring that our higher education institutions play their part—which many are willing to do—in ensuring that the communications they give to our young people about the benefits of university life, graduation and entering the labour market as a graduate are well known. That is the way we should go within an education system that we are striving to make excellent for all children in all schools at all times.

The Earl of Northesk: My Lords, is it not the case that according to the department's own figures, average student debt levels increased two and a half times between 1998–99 and 2002–03 to nearly £9,000? Is it not also the case that the poorest undergraduates are saddled with the greatest debt? Indeed, the figures suggest that they carry 44 per cent more debt than those better placed.

Baroness Ashton of Upholland: My Lords, the noble Earl will be aware of the income and expenditure survey which we published yesterday. I think it says very clearly that we are right to abolish upfront fees because of their impact. Too many students are having to find £700 in upfront fees each year because their parents are not paying the assessed contribution themselves. That is very important.
	We believe that students' standard of living has risen over the past four years. Noble Lords will know from the survey that that is an important aspect. We believe the student loan generally does what it should, although we will of course look very carefully at the survey's findings. We need to make sure that we get away from the idea that it is okay to borrow for the purposes of consumption but not for investment.

Lord Faulkner of Worcester: My Lords, does not the report published yesterday from Professor Callender of South Bank University, showing that it is the poorest students who leave universities with the highest debts, underline very strongly the point that if we are moving to higher tuition fees there has to be a system of bursaries which enables the better-off parents effectively to subsidise the education of the less well off? Only in that way will it be possible to achieve proper access to our great universities.

Baroness Ashton of Upholland: My Lords, I believe that my noble friend would accept that the combination of the abolition of upfront fees—which will have an impact on all students—the addition of a grant available to students from low-income backgrounds and a bursary scheme which we are currently discussing, through Universities UK and other means, will provide very generous support to those students whom we are trying to attract, as the noble Lord, Lord Wallace, quite rightly indicated. This combination is a fundamental part of ensuring a university system that is well funded and able to provide good, high-quality higher education for all students, and that those who are able to go to university are encouraged to do so.

Baroness Blatch: My Lords, is the Minister concerned about the rise in drop-out rates of students? Does the department believe there is any correlation between that and levels of debt?

Baroness Ashton of Upholland: My Lords, I do not have the detailed information on that. The noble Baroness, as always, raises an important point. I will, if I may, write to her with information on drop-out rates. We have been looking at this. It is my understanding that we do not see a correlation, but I will write to her and put a copy of my letter in the Library.

Baroness Finlay of Llandaff: My Lords, I declare an interest as vice-dean of the University of Wales College of Medicine. Across all the healthcare courses in our university, 50 per cent of students are graduating with debts of more than £17,000. The students are concerned that recruitment to some courses such as radiography will become increasingly difficult again with the size of debt. Is this of concern to the Government, and how are they planning to monitor the supply of healthcare professionals?

Baroness Ashton of Upholland: My Lords, the Department of Health is of course very concerned to ensure that it has the right quality and number of healthcare professionals coming through courses. I know that it will take a great interest in that. Part of the issue for variable fees is to allow institutions to be able to lower fees as well as increase them, thereby looking at where shortages occur in our economic life and with regard to students entering courses. This may well be an area which the department would consider. I remind noble Lords that that is different from traditional debt. This is about investment in one's future as a student and a graduate. Students will not pay back anything until they are earning a minimum of £15,000, and then they will pay back only what they have borrowed.

Baroness Carnegy of Lour: My Lords, are the Government concerned that a lower proportion of students are going away from home to university and are instead going to the university next to their home to save money? Of course, while many will always do that, many have also had the increased benefit of going to a different university somewhere else. Are the Government concerned that that proportion is dropping?

Baroness Ashton of Upholland: My Lords, it is important that families, particularly students, have the right kind of choice about where they move. I accept the noble Baroness's point that a proportion of students have always gone to university close to home.
	We will be looking very carefully at what impact all our proposals are having, as will the higher education institutions. However, we have to be wary of making an assumption that one factor leads on to another and that what we are seeing is a direct result of the strategy we have in place.

Lord Eatwell: My Lords, is my noble friend aware that as a result of a bursary scheme that is already in place, established by the colleges of Cambridge, for someone from a financially disadvantaged background, the University of Cambridge is now the cheapest university in Britain to attend?

Baroness Ashton of Upholland: My Lords, I pay tribute to what the University of Cambridge has done, as, indeed, have many other universities. But we still have to look very carefully at the percentage of students who are applying to universities and the barriers to their application, and remove those barriers. I think noble Lords would accept that that is a key concern. Higher education institutions have a very important role in ensuring that the numbers of students from varying backgrounds who are able to go to university because they have the qualifications and ability are doing so in the right proportions, and then the universities can accept them.

Jewish Communities: Security

Lord Janner of Braunstone: asked Her Majesty's Government:
	What additional steps they will take to protect Jewish and other communities in view of the attacks on the synagogues in Istanbul and other recent terrorist attacks.

Lord Bassam of Brighton: My Lords, the Metropolitan Police report that in the aftermath of the terrorist attacks in Istanbul, a senior Metropolitan Police officer met members of the Jewish community. Generally, advice is issued, when appropriate, to regional police chief officers in response to security assessment and in consideration of current events. All forces are encouraged to work closely with community contacts on security issues. Community involvement is a key strand to the police counter-terrorism effort.
	The Community Security Trust meets with the police to address concerns and promote a co-ordinated response to anti-semitic incidents.

Lord Janner of Braunstone: My Lords, I thank my noble friend for his Answer. Does he recognise the very great and sad recent change in the nature of racist attacks? They tend no longer to be simply racist or anti-semitic shouts or attacks on individuals. Indeed, in the past week they have included the attacks on the synagogues in Istanbul, to which my noble friend referred, resulting in murders and injuries, as well as the attack on the Jewish school in Paris. There is very great concern among the smaller communities in this country at the growth of this sort of terrorism.
	Has my noble friend seen the lead article on the front page of The Times today that a terrorist suspect in custody told detectives of a 15 to 20-strong cell of Algerian supporters of Al'Qaeda, ready to launch a terrorist attack? Their intended targets are understood to be synagogues in London and Manchester. What steps are Her Majesty's Government proposing to take to meet what is regarded as a very serious and growing concern?

Lord Bassam of Brighton: My Lords, we recognise that this is a very serious and growing concern. Anti-semitic attacks have, sadly, increased over the last few years. We are aware of the article in The Times. Only yesterday, a special meeting took place involving police officers from the specialist departments, ACPO and Jewish communities to discuss security issues, particularly in the light of recent events. Obviously we will be ever vigilant because of the very real and profound concerns which understandably exist within the Jewish community.

Baroness Miller of Hendon: Does the Minister agree that the current anti-American "stop the war" demonstrations could be better directed at those who are actually perpetrating warlike acts? In Iraq, for instance, there are attacks on the soldiers and the citizens, there have been attacks on synagogues, as the noble Lord, Lord Janner, said, especially in Turkey, and there is also the threat that something will be done in this country.

Lord Bassam of Brighton: My Lords, we all abhor anti-Americanism and recognise the strength of the special relationship. Of course, the noble Baroness is absolutely right that we should direct as much attention as possible to dealing with, tackling and preventing the various very serious threats to the Jewish community and other ethnic minority communities in our country.

Lord Dholakia: My Lords, I thank the noble Lord, Lord Janner, for raising the matter. There is a serious concern among minorities to the extent that religious premises fail to receive adequate police protection. Is the Minister aware that only 10 days ago, in a temple in Ealing Road, two people entered while worship was going on, broke the statue of worship and shouted anti-Indian slogans? If we fail to protect those communities, they will take the law into their own hands, which would damage community relations. Is it not about time that the police provided adequate protection, not only to the temples, gurdwaras and mosques but to any of the places of worship that are so precious to minorities in this country?

Lord Bassam of Brighton: My Lords, we are obviously aware of that attack. The police are vigilant in these matters—they have been exceptionally vigilant. Special meetings take place regularly, and all police services in the United Kingdom are particularly aware of the issues that the noble Lord raises. I dispute the suggestion that the police lack vigilance; clearly, they care greatly and deeply, as we all do, about these matters. I add my congratulations to the general congratulations to the police service on tackling them.

Lord Mackenzie of Framwellgate: My Lords, given the fight against terrorism, to which we are all committed, and after the penetration of Buckingham Palace by a Daily Mirror reporter, does that not underline the necessity for a biometric national identity card? Members opposite complain about the police not doing their job, but it might help if they supported the police request for such a measure.

Lord Bassam of Brighton: My Lords, that is a little wide of the original Question. However, this is part of an ongoing debate. Yes, being able properly to identify people will make a very positive contribution to law enforcement.

Viscount Bridgeman: My Lords, does the Minister agree that the knock-on effect on other communities from what has happened in the synagogues is a danger? Will he ensure that the same welcome liaison that the police are making with the Jewish community will be extended to all other communities and their places of worship?

Lord Bassam of Brighton: My Lords, I am entirely at one with the noble Viscount. There are regular meetings between the various ethnic communities, who experience and feel threats most regularly. There is a general encouragement in the police service to ensure that racist attacks are dealt with and dealt with promptly. It is perhaps worth saying that, over the past couple of years, there has been a big increase in the number of cases brought forward by the police for prosecution with regard to racially motivated crime, and a very welcome increase in the number of defendants prosecuted and brought to justice.

Lord Clarke of Hampstead: My Lords, in the discussions that the Government have had with the security authorities, will they draw attention to the fact that each day, when children are at school, cars are pulling up and dropping off in a very short space of time? Could extra vigilance be given to those groups who have used the method of suicide bombing in the weekend atrocities in Turkey and other places? It is the most natural thing to see cars pulling up outside schools. Could schools, especially schools with Jewish children, have some special attention in that regard?

Lord Bassam of Brighton: My Lords, that is one of the issues that was discussed recently when the Jewish community met the Metropolitan Police Service. I know that the issue is being dealt with with the greatest seriousness.

Iraq: Reconstruction Contracts

Lord Razzall: asked Her Majesty's Government:
	What representations they have made to the United States administrator for Iraq, Paul Bremer, as to whether British companies can compete with American companies for primary contracts authorised for the rebuilding of Iraq.

Lord Sainsbury of Turville: My Lords, the £18.6 billion additional spending to be used on the reconstruction of Iraq will be administered by a new organisation, the Iraq Infrastructure Reconstruction Office. There is no clear agreement on what procurement rules will apply, but it is likely that the office will follow those of the US Department of Defense, whose procurement rules are more flexible than those used by US AID, which by law must give prime contracts to US companies.
	The Minister for International Trade and Investment visited Washington on 3rd November to discuss with senior members of the administration the disbursement of the supplemental budget and the role that the British private sector might play.

Lord Razzall: My Lords, I thank Minister for that Answer. I assume, incidentally, that he made a slip of the tongue and that 18.5 billion dollars, not pounds, have been allocated.
	Will the Minister say whether he regards it as acceptable that, of the top 10 contracts to be let so far, all of them have been granted to American companies? Many have been granted to companies that were former employers of members of the administration, including Vice-President Cheney. Many have been awarded to companies that gave substantial donations to President Bush's election campaign. Do Her Majesty's Government regard that as acceptable behaviour, or as behaviour that would make even Lloyd George look parsimonious?

Lord Sainsbury of Turville: My Lords, it is difficult to see what proportion of contracts has been awarded to different countries, because no comprehensive list has been made. For the contracts given by a whole range of bodies, including the Coalition Provisional Authority, US AID and the US Army Corps, the last figures that we have seen are very out of date—they date back to August. The figures produced by Bechtel suggest that British companies have got a very reasonable proportion of the total number of contracts.

Baroness Miller of Hendon: My Lords, what effect does the Minister believe that the demonstrations in London and around the country against the President of the United States of America may have on any decisions that are taken by the American administrator in Iraq on the very question that the noble Lord, Lord Razzall, has asked?

Lord Sainsbury of Turville: My Lords, Mr Paul Bremer made it clear in a recent interview that he would welcome more British contracts. British companies are looking for those contracts to be given fairly and properly. When the Minister for International Trade and Investment went to Washington, he was warmly received and encouraged to put forward more bids.

Lord Watson of Richmond: My Lords, does the Minister agree that, even under more flexible rules, the probability is that no contracts will be awarded other than to foreign companies in joint venture agreements with US companies? If that is the case, where does that leave possible British contractors? Just as importantly, as the Government today confirmed, unemployment in Iraq is at 50 per cent. What are the chances for Iraqi companies to play any part in the reconstruction of their own country?

Lord Sainsbury of Turville: My Lords, under Department of Defense procurement rules, foreign firms are eligible to bid on prime contracts, although there is a presumption of giving preference to US firms that are able to carry out the work. In practice, most UK companies are either looking to bid on prime contracts in joint ventures with US partners or to bid for sub-contracts.
	Iraqi companies are playing a very large part in the process. I mentioned the last figures that we have on the Bechtel situation, which showed that a higher percentage of the contracts were going to Iraqi companies than to American companies.

Earl Ferrers: My Lords, can the Minister say who pays for the contracts? Presumably it is not the Iraqis. Is it only the Americans, or does it go further than that?

Lord Sainsbury of Turville: My Lords, the money that we are talking about in this case is provided by the American Government.

Lord Elton: My Lords, is there any requirement on those who get the contracts to see that some of the benefit, in the form of labour and jobs, goes to local people in Iraq, and that the whole benefit does not accrue to the United States?

Lord Sainsbury of Turville: My Lords, as I have pointed out, a large number of the companies involved are Iraqi companies, which in many cases have been chosen for just that reason—because they will be using labour in Iraq. Clearly, that is very important to the reconstruction efforts and to the attempts to get the economy going again. Furthermore, given that the work is by and large infrastructure work, a great deal of it must by definition take place in the country.

Lord Brookman: My Lords, many of us are concerned about the American situation regarding steel. Will my noble friend comment on where we are with the American Administration regarding steel? To what extent does it involve our commitment and position regarding the restructuring of Iraq?

Lord Sainsbury of Turville: My Lords, they are two quite separate situations. Our views are well known on steel. The matter has gone to the WTO, which has made it clear that the subsidies for the tariffs on American steel are illegal. It is for the EU to take further action in due course, but that is a separate situation from the Iraq situation.

Earl Attlee: My Lords, would it not have been more helpful to UK companies if before hostilities commenced DfID had been more closely involved in the planning of the reconstruction of Iraq?

Lord Sainsbury of Turville: My Lords, I think it is very difficult to see how that would have taken place in practice. Clearly, it would have been desirable if more planning had taken place. However, I do not think that the particular issue of how contracts are allocated would have been deeply affected by that.

The Earl of Sandwich: My Lords, what is the position with Turkey? Do the Administration have the same misgivings about its commercial operations as they do about its defence forces?

Lord Sainsbury of Turville: My Lords, I thought that this Question was on Iraq contracts. I cannot see any connection between that and the Turkish situation.

Lord Campbell-Savours: My Lords, if American money is funding these contracts, why should the Americans not favour their own contractors as prime contractors?

Lord Sainsbury of Turville: My Lords, as I said, a large amount of the money so far allocated has been allocated by US AID. One of its legal requirements is that the prime contracts go to American companies, which seems not unreasonable. On the other hand, in the award of other contracts and where there is open competition, I think it very important that that should be on a fair and open basis.

Business

Lord Davies of Oldham: My Lords, by the leave of the House, it may be for the convenience of the House if I make a Statement on the projected business for today. This afternoon we shall receive the Commons amendments to the Health and Social Care (Community Health and Standards) Bill. We will consider those amendments after consideration of Commons amendments on the Criminal Justice Bill but not earlier than 9.45 p.m.
	The Commons amendments will be available in the Printed Paper Office from 6.45 p.m. Peers who want to table amendments to the Commons amendments can do so in the Public Bill Office from 6.45 p.m. until 8.45 p.m. At 9.15 p.m., a Marshalled List of amendments will be available in the Printed Paper Office.
	I will make sure that these events are indicated on the annunciators. If there are any complications that affect this plan I shall come back to the House to explain what is happening. I will also update the House on timings for further rounds of ping-pong on both the Criminal Justice Bill and the Health and Social Care (Community Health and Standards) Bill.

Criminal Justice Bill

A message was brought from the Commons, That they agree to certain amendments made by your Lordships to the Criminal Justice Bill without amendment; they disagree to certain other amendments but have made amendments to the words so restored to the Bill to which they desire the agreement of your Lordships; they disagree to a certain amendment but have made amendments in lieu thereof to which they desire the agreement of your Lordships; and they disagree to the remaining amendments for which they assign reasons.

Baroness Scotland of Asthal: My Lords, I beg to move that the Commons message be considered forthwith.

Moved accordingly, and, on Question, Motion agreed to.

COMMONS REASONS FOR DISAGREEING TO CERTAIN LORDS AMENDMENTS, COMMONS DISAGREEMENT TO CERTAIN LORDS AMENDMENTS AND COMMONS AMENDMENTS TO WORDS SO RESTORED TO THE BILL, AND COMMONS AMENDMENTS IN LIEU OF A CERTAIN LORDS AMENDMENT DISAGREED TO

[The page and line references are to HL Bill 69 as first printed for the Lords.]

LORDS AMENDMENT

2 Clause 4, Leave out Clause 4 The Commons disagree to this Amendment for the following reason—
	2A Because it is appropriate to extend the circumstances in which the telephone may be used in connection with the review of police detention.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 2 to which the Commons have disagreed for their reason numbered 2A. I shall speak also to Amendments Nos. 4 and 8, to which the Commons have disagreed for the reasons numbered 4A and 8A. I shall speak first to Amendment No. 2.
	The deletion of this clause from the Bill places an unnecessary restriction on a practical and efficient way of overcoming some of the resource and logistical problems of arranging reviews. The clause will maintain the application of these important safeguards but broaden the capacity so that telephone reviews can be used where they are considered the most practical and efficient approach. It will provide the review officer with a straightforward alternative of reviewing in person or by telephone. In so doing, however, he must consider each case individually and decide the most appropriate way to conduct the review.
	We have made it clear in guidance that specific consideration must be given in the case of vulnerable suspects, including juveniles. The clause follows the recommendation of the joint Home Office and Cabinet Office review of PACE that allowing the use of telephone reviews in a wider set of circumstances would better serve the needs of the police and the rights of suspects.
	I shall speak now to Amendment No. 4. At present the law allows the police the discretion to retain the fingerprints and non-intimate samples taken by them during the investigation of an offence of persons suspected of having committed a recordable offence. This amendment as drafted would not only require the police to destroy the fingerprints and samples taken from persons arrested for a recordable offence and not subsequently charged; it would also put the law back to the position prior to the changes made in 2001. That change to the law has proven to be extremely important.
	The custodian of the National DNA Database tells us that there are now approximately 103,000 DNA profiles on the database which would have previously been removed under PACE. Of those, approximately 4,600 profiles of individuals have been linked with crime scene stains involving 4,760 offences. Those offences include 26 murders, 15 attempted murders, 27 rapes, 13 sexual offences, 14 aggravated burglaries and six of the supply of controlled drugs. Those are all offences which were committed after the person had been acquitted of an earlier charge. We therefore ask whether we really want to revert to a situation where the police would be denied this type of crucial intelligence in the investigation of crime.
	I turn to Amendment No. 8. As originally drafted, this clause provided for the Secretary of State to alter, by order made by statutory instrument, the minimum age at which persons in police detention may be tested for specified class A drugs—that is, heroin, crack and cocaine. The clause also provided for the order to be subject to the affirmative resolution procedure. This delegation and level of scrutiny was considered to be appropriate by the Select Committee on Delegated Powers and Regulatory Reform. These provisions are to be introduced in limited areas on a pilot basis initially. We maintain that it is important that the Secretary of State should have the ability to change the minimum age, either up or down. It is our intention that any decision to change the minimum age for drug testing will be made only after full consideration of all the available evidence and will take account of the views of relevant bodies. I therefore urge your Lordships not to insist on your Amendments Nos. 2, 4 and 8.
	Moved, That the House do not insist on its Amendment No. 2 to which the Commons have disagreed for their reason numbered 2A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENTS

4 After Clause 8, Insert the following new Clause— "Destruction of fingerprints and samples
	(1) Section 64 of the 1984 Act (destruction of fingerprints and samples) is amended as follows.
	(2) In subsection (3), the words ", except as provided in the following provisions of this section," are omitted.
	(3) Subsections (3AA), (3AB) and (3AC) are omitted."
	The Commons disagree to this amendment for the following reason—
	4A Because it is appropriate to ensure the exclusion in certain cases of the duty under section 64(3) of the Police and Criminal Evidence Act 1984 to destroy fingerprints and samples.
	8 Clause 12, page 7, line 35, leave out paragraph (c) The Commons disagree to this amendment for the following reason—
	8A Because it may prove desirable in the light of experience to vary the minimum age above which a test for Class A drugs may be required under section 63B of the Police and Criminal Evidence Act 1984.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendments Nos. 4 and 8 to which the Commons have disagreed for their reasons numbered 4A and 8A. I have spoken to these amendments with Amendment No. 2.
	Moved, That the House do not insist on its Amendments Nos. 4 and 8 to which the Commons have disagreed for their reasons numbered 4A and 8A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

32 Clause 41, Leave out Clause 41 The Commons disagree to this Amendment for the following reason—
	32A Because it should be possible for a defendant to apply for a trial to be conducted without a jury.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A.
	These amendments deal with the issue of jury trial. I shall come in a moment to the amendments to Clause 42 which the Government made in another place yesterday and which respond to concerns raised by Her Majesty's loyal Opposition and those sitting opposite. First, however, I should like to set the wider context of this provision by explaining why it is in the Bill and why it is important that it stays there.
	Fraud is on the increase. Technological advance, the growing sophistication of the market and the proliferation of financial instruments and products have created new opportunities for fraud. Its economic impact is huge. On latest statistics, fraud is costing the country about £14 billion per year, as against £1 billion in 1985. Therefore, I think your Lordships will agree that fraud harms us all. It affects individual savings, pensions, investments and jobs. It also has direct costs that impact ultimately on the whole of society.
	Clause 42 addresses a particular problem within the wider fraud arena. It recognises and seeks to deal with a small—I repeat "small"—number of fraud and other financial cases where there are clear difficulties in conducting a trial by jury. Those difficulties are not abstract and theoretical but have been encountered in practice. The courts themselves have expressed the gravest concerns about the threat to justice inherent in making these kinds of case manageable for juries. That has long been recognised, as I think even those who oppose Clause 42 would acknowledge. The Roskill report on serious fraud in 1986, the establishment of the Serious Fraud Office and Lord Justice Auld's independent review are all evidence of attempts to respond to these difficulties over the past few decades. The case for change has commanded general support.
	Considerable and, for the most part, successful—I wish to emphasise that—efforts have been made to try to help the courts in managing the trial process in such cases. The preparatory hearing regimes in the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996 are working well. However, there continue to be a few exceptional cases—one must regard them as exceptional—that are so lengthy and/or complex that they stubbornly resist the best efforts of all involved to reduce the burden on the jury without imperilling justice. The need to meet the imperative of manageability for juries means that these trials are currently being carved up in a way that simply cannot be said to serve the interests of justice. They are divided into separate trials, evidence is pared down and charges reduced. Secondary defendants who should notwithstanding be prosecuted are not brought to justice.
	Even in the event of a conviction, losses to the public interest and to confidence in the criminal justice system arise from the fact that the jury has been asked to reach a verdict on an artificially truncated version of the facts. The totality of the offending is not exposed; judges are unable to sentence on the basis of the full criminality and the public at large are never told the whole story. So justice, not least justice for victims, is not done.
	Serious fraud trials can last for months. They place an excessive and unreasonable burden on the members of the jury. They also make it difficult to ensure a representative jury. Jury service is an important civic duty but there must be proper limits to the imposition that it is right to make on jurors' lives. Clause 42 requires the judge to ensure that all the options that would allow jury trial have been thoroughly tested. The threshold for non-jury trial is a high one, and deliberately so. Where it is necessary in the interests of justice looked at in the round for a case to be conducted without a jury we would ask, what possible case can there be for doing anything else?
	A number of comments have been made, first, in relation to whether we are creating a two-tier system of justice. We are not. I remind noble Lords of what was said by the noble and learned Lord, Lord Cooke. I refer to his experience in New Zealand where this provision has been in existence for 20 years or so and has had no disadvantageous effect upon the availability of jury trial in normal cases. We believe that these provisions are appropriate.
	Moved, That the House do not insist on its Amendment No. 32, to which the Commons have disagreed for their reason numbered 32A.—(Baroness Scotland of Asthal.)

Lord Hunt of Wirral: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A, leave out "not".

Lord Hunt of Wirral: My Lords, I should like to follow the example of the Minister in seeking to address the debate on the other amendments that deal with jury trials.
	As probably several noble Lords did, I listened to the full debate on these Lords amendments in the other place yesterday. I was very concerned that the Home Secretary, Mr Blunkett, did not follow the example of the noble Baroness. He was very critical of this place. First, he said that we had not had a sensible debate. I recall that in July we had a very wide-ranging debate. Hugely important issues were raised and a number of noble Lords clearly expressed deep feelings of anger at any attempt to fetter the right to jury trial. To regard that as not a very sensible debate was not helpful. Indeed, Mr Blunkett said that we had scored a pyrrhic victory. Noble Lords will know that in 279 BC the Greek leader, Pyrrhus, scored a great victory over the Romans. I suppose that the analogy that Mr Blunkett used concerned the great cost of that victory. However, I am afraid that he was badly advised. I consulted the website of The Oxford English Dictionary and of Webster's. Mr Blunkett could hardly have failed to notice—although this must be another bid by him to appeal to the Left wing of the Labour Party—or he should have noticed, that there was a press release some weeks ago by the editors of The Oxford English Dictionary stating that the phrase "pyrrhic victory" was to be removed from the dictionary because, rather like this Government, it had outlived its usefulness.
	Did Mr Blunkett know that, according to John Smytheton, chief editor of The Oxford English Dictionary, the phrase, "pyrrhic victory" is to be replaced with "Bush victory" in the next edition of The Oxford English Dictionary? Perhaps the Home Secretary was not up to date on that. However, he was also very critical of the fact that we do not have a Speaker or Deputy Speaker and that we have no means of timetabling our debates. In fact, the debate in the other place took one hour 45 minutes, of which Mr Blunkett took over 30 minutes. I counted another 12 speakers who were trying to get in. That is the evil of timetabling. Mr Blunkett said:
	"There is no procedure in the House of Lords for any sort of timetable or closure mechanism, nor any provision for the operation of the Speaker and Deputy Speaker system . . . Until we have such a system in the Lords, we cannot take anyone's word that that House will be in favour of anything that we propose".—[Official Report, Commons, 18/11/03; col. 652.]
	I hope that Mr Blunkett will regret those words. Those are the words of a senior Cabinet Minister so at least we know what this Government would have in store for us. However, we shall carry on having our high quality debates without timetabling.
	On 15th July your Lordships decided to remove entirely from the Bill what was then Part 7. Now the other place insists that those clauses should be restored. I hope I speak for the majority when I say that we remain opposed to the Government's proposals which would allow a defendant to elect trial by judge alone, and those which would allow judge-only trials in so-called complex cases. We believe that allowing defendants to elect non-jury trial would be divisive and would create an unacceptable two-tier system. Defendants charged with offences attracting serious public opprobrium would opt out of the jury system; others would engage in forum shopping, hoping for a particularly liberal judge. I have to tell the Government that they are wrong. Similarly, we cannot accept the Government's proposals to do away with jury trial in complex and lengthy cases. Juries are perfectly capable of understanding the key issues relevant to guilt or innocence in such cases. It is a simple matter for the jury to decide whether someone is dishonest. That is its task, and it fulfils it extremely well.
	There are other avenues whereby fraud trials could be made less complex and lengthy. I have a press release issued on 30th July 2002 by the Law Commission. It had been asked by Mr Straw to look into ways in which the law on fraud could be made more readily comprehensible to juries. That is a very simple task, but one that the Law Commission took some considerable time—more than four years—to fulfil. It came forward with a draft fraud Bill, which would certainly simplify the law on fraud. I have asked the Home Office and the Library what has happened to the Law Commission's proposals, why there has been no comment from the Government on the proposals, and why on earth we are suddenly seeking to tamper with the jury system without having properly considered the fraud Bill. I hope that the Minister responds.
	The Government propose to do away with juries in any case in which there are complex or lengthy issues of a,
	"financial or commercial nature or which relate to property",
	so many more cases will be affected than the Government have claimed. The proposal is not related simply to complex fraud trials, but could affect all sorts of cases, from drug dealing to health and safety prosecutions. I hope that the Minister will understand when I say that we cannot accept the Government's proposals on defendant election and complex and lengthy cases.
	This House has come to recognise the force of the arguments made in relation to jury tampering. We on these Benches and the Opposition in another place have reflected long and hard on what was said in this House on 15th July, and on what was said outside Parliament, most notably by Sir John Stevens, the Metropolitan Police Commissioner. I hope that your Lordships will recall that I said on that occasion that,
	"we have much sympathy with the police if indeed, as the Deputy Commissioner revealed in a letter to The Times today, this problem is growing. Let us look at the details and consider what it is best to do".—[Official Report, 15/7/03; col. 773.]
	One way forward to attempt to tackle jury tampering was suggested by my honourable friends in another place in May. Intimidation of juries is an evil that has to be stopped, but so does intimidation of the judge, of witnesses and of parties. We all agree that that evil has to be stamped out.
	The noble and learned Lord, Lord Donaldson, said in our previous debate—I will not quote him in full—that he had been persuaded that there had to be a way forward. We have listened to the arguments and have been persuaded that, where a trial has had to be aborted because of jury tampering, it should be open to the judge to order that any retrial should be before a judge of the Crown Court alone, sitting without a jury. That was the proposal put forward by Mr Letwin in another place on 19th May, and the opposition amendments would preserve the right of everyone charged on indictment in the Crown Court to have a jury trial in the first instance.
	We do not subscribe to the idea that it would be desirable to dispense with jury trial completely in some cases, which was the original proposal in the Bill. However, we accept that if someone has abused the right to a jury trial by seeking to pervert the jury's verdict, it should be open to the judge to prevent that happening a second time. There would, of course, be an appeal against the judge's decision under our proposals.
	The essential principle is that justice must be done. For those who abuse the right to jury trial and seek to pervert the system in their favour, we have been persuaded of the case for change. Having said that, we remain opposed to what the Government seek to do. We remain committed to the fundamental principle of ensuring that every defendant in the Crown Court has the right to a jury trial in first instance. That remains our position, but we accept the force of the arguments made in relation to cases where jury tampering has taken place. However, so far the Government have not come forward with proposals that we could accept.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A, leave out "not".—(Lord Hunt of Wirral.)

Lord Thomas of Gresford: My Lords, we on these Benches support Amendment No. 32B. Everything that could be said on this topic has been said in the days in Committee and on Report. The fact that Mr Blunkett made the comments referred to by the noble Lord, Lord Hunt, demonstrates that he has as much understanding of this House and the way in which we consider matters as he has of the criminal justice system.
	The noble Baroness seemed to think that it should be put on the debit side that the prosecution in a complex case simplify issues and pare them down. I do not regard that as something wrong in any way. It is very important that the public understands what a case is about. When we get to a situation in which there is a private conversation between lawyers in a criminal case—the prosecution, the defence and the judge—and when it is only the judge who can understand what is going on and members of the public cannot, it will be a bad day for the criminal justice system of this country.
	I put that in the context that public confidence in the jury system remains as high as ever. The proposals are not put forward in a climate in which the public is calling for change in the area. The verdict of a jury, whether guilty or not guilty, commands respect and acceptance. The longer that that stays with us the better. I do not intend to weary your Lordships any further with the amendment. We will support it.

Lord Borrie: My Lords, Clause 43 gives the prosecution the possibility of asking for a judge-only trial, provided that certain conditions are satisfied relating to the burden that there would be on a jury, if it were a jury trial, and to the complexity of the facts. It has been said, particularly by the noble Lord, Lord Hunt, that if there is any difficulty in the jury comprehending the details of a fraud indictment, the case should be simplified because juries certainly understand the difference between honesty and dishonesty. There are dangers in that, however, as my noble friend pointed out, if the details of the prosecution case are withheld from the jury. If it does not get, receive or hear evidence about the details, the full force and strength of a prosecution case may be diminished.
	I shall dare to repeat what may have been mentioned in Committee. The Government's White Paper, Justice for All, stated in 2002 that,
	"prosecutions often pare down cases to try and make them more manageable and comprehensible to a jury. This means the full criminality of such a fraud is not always exposed".
	Perhaps I may raise a point that has not yet been raised today. Who actually constitutes the jury in these complex cases? Is it really randomly selected? In the Maxwell case, 700 jurors were called and 550 were excused. Juries in these complex cases are likely to be less representative of the general community than in the norm of criminal trials, and they are unlikely to be peers of the people sitting in the dock. I fear that the jurors called who are not excused may be least likely to have experience of accounting or business. People running their own businesses and people with significant positions in industry and the professions are most likely to be excused jury service.
	I fear that not enough was said during earlier stages of the Bill about the length and difficulty of some fraud cases. The Maxwell case, to which I referred, began in May 1995 and lasted until January 1996. It resulted in an acquittal to defraud the Maxwell pensioners of £122 million. The jury took 12 days to reach its verdict. It had taken 131 trial days and the cost was reported as being about £20 million.
	In November 2002, The Times reported the acquittals of certain businessmen, the chairman of a company and finance directors who had been charged with fraud—

The Earl of Onslow: My Lords, is the noble Lord saying that those accused of the Maxwell fraud are guilty and the jury got it wrong?

Lord Borrie: My Lords, I would not have the impertinence to draw any such conclusion. I am talking about how lengthy such cases are and how difficult it is to find jurors, particularly those with experience of business, to sit for the number of days required in order to determine the matter.

Lord Thomas of Gresford: My Lords, is the noble Lord suggesting that judges should have experience of accountancy and business?

Lord Borrie: My Lords, frequently they have and they can certainly understand more readily than many of us what is explained to them. I do not want to lengthen the debate, so perhaps I may put in parenthesis the fact that I would prefer a system whereby the judge sat with assessors who were particularly knowledgeable of finance and so forth. That suggestion is not before us in the Bill. There should be jury trials in every case or, alternatively, the possibility of requesting that it be a judge-only trial. That possibility, subject to conditions and to appeal as provided for in the Bill, deserves the support of Parliament.
	In conclusion, it is worthwhile drawing attention to an article which appeared in the Financial Times two or three days after our debates in Committee by a former head of the Serious Fraud Office, Miss Rosalind Wright. She suggested what were the advantages, at any rate in some cases, of trial without a jury. She mentioned that the judge,
	"could read the documents in advance of the trial and cut through the swathes of paper in the courtroom; he could ruthlessly limit cross-examination and speeches; he could give a reasoned judgment at the conclusion of the proceedings"—
	juries, of course, never give reasoned judgments—
	"which would assist both prosecution and defence in understanding how the verdict was arrived at",
	and no doubt be of assistance as a precedent in later cases.
	There is a strong case for allowing the Commons view to prevail—that there should be a possibility of asking for a trial by judge alone—and I hope that we will not persist in this House in continuing opposition to that.

Lord Morris of Aberavon: My Lords, I regret that I was abroad when the House last discussed juries. The House will be cheered that I will not repeat the arguments used on that occasion. The debate has been broadened by the Opposition into some observations which appertain to the next clause and it may be convenient if I deal briefly with both.
	First, I am fundamentally opposed to tampering with the right to trial by jury—either at the instigation of the prosecution or the defence. Secondly, although I cannot go into the Lobby to support the Government, I accept with regret that at this juncture the views of the elected House must prevail.
	As a practitioner in criminal law all my working life, save for the 13 years as a Minister and a senior Law Officer of the Crown, I believe that in the overwhelming number of cases the jury system in England and Wales works with young or old jurors, short or long trials, simple or complicated trials. That has been my experience most of my working life.
	Since 1972, when the Criminal Law Revision Committee reported, there have been repeated attempts in one direction or the other to limit jury trials. In each case, one or other House of Parliament has resisted such attempts.
	The Government have rightly watered down their original proposals in Clause 42. Their original proposals were unsustainable. There remains the only part of reform where I have a real sympathy for such trials which are really burdensome to jurors.
	The longest criminal trial in which I was involved began in February and finished in September. All of us felt the burden. But is this enough for a change? I welcome Clause 42(6), respelling the duty of the judge to reduce complexity or length. A more active judicial role is to be welcomed. The Court of Appeal from time to time has dealt with the question of overburdening the indictments.
	But before the House embarks on this unhappy part of the legislation, perhaps I may quote what was written a long time ago—more than two centuries—by Blackstone in his commentaries. He stated:
	"The truth of every accusation . . . should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make)—
	he did not reckon with Mr Blunkett—
	"but also from the secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trials by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.".
	I commend those remarks. If we are to go down this road, I hope that Blackstone's Commentaries will be remembered when we next discuss it.

Viscount Bledisloe: My Lords, the noble Lord, Lord Hunt, will have very successfully curdled the blood of the House by reciting some of the comments made by Mr Blunkett in another place about your Lordships' House. If Mr Blunkett considers it necessary that we have a Speaker in this House in order that the Government may get their way, I should have thought that he will have fairly conclusively decided for this House how it will feel about that. I am very pleased to see that the noble and learned Lord, Lord Lloyd of Berwick, is in his place to hear those views so that he may take them into account in his committee.
	The noble Lord, Lord Hunt, and others, have made a very powerful case for the right to a jury trial. But surely the amendment currently before the House—Amendment No. 32—concerns the question of the defendant's ability to abandon that right. Surely it is a corollary of every right that one is entitled not to exercise it. I have to confess that I find the noble Lord's case on that amendment far weaker than his case on the others, where the right is being taken away from the defendant rather than being voluntarily surrendered by the defendant. If the noble Lord is minded to test the opinion of the House, I wonder whether he will consider it more appropriate to test it on the later amendments, where the right is taken away, rather than on the defendant's right to surrender his right. At present, I cannot understand the objection to that.

Lord Renton: My Lords, I support what the noble Viscount has just suggested. In Committee, I mentioned an immensely complicated fraud case which lasted for five weeks. By the time the case had gone on for two or three weeks, the jury, which largely consisted of not very well educated people, did not have a clue what was going on. Therefore, I feel that a degree of flexibility in this matter is necessary. If the defendant wants a jury, he should have it. But if he feels that he is not obtaining justice with the aid of a jury, a jury should no longer be inflicted on the court.

Lord Davies of Coity: My Lords, I know that it is rather dangerous for someone who has not been directly involved in the judiciary to trespass on this debate. Nevertheless, I sometimes think that those closely involved do not see the wood for the trees.
	The noble Lord, Lord Hunt, was very critical of my right honourable friend the Home Secretary in regard to a pyrrhic victory. I am not sure what point was being made, although he referred to the Oxford Dictionary. But I believe that the general understanding is that a pyrrhic victory does not have very much value.
	I believe that if we want justice to prevail, our legislation must ensure that that happens. Having considered this matter, the Government found that some fraud cases are rather prolonged, generally organised crime is involved and no one supports the culprit. We want to preserve the protection of the victim. Consequently, the law enforcement associations in this country support what the Home Secretary is putting forward. I do not want us to enter into an academic judicial argument of principle when the practical application should ensure that justice prevails in this country. The British people should be supported by a system which ensures that the guilty are, in fact, convicted. I hope that this House will support what the Home Secretary is doing.

Lord Ackner: My Lords, I want to make one or two short interventions on this matter. Reference has just been made to the right to surrender the right to a jury in complex cases. If that right is given, why should it not apply to all cases? That, indeed, was one proposal in the Bill. The answer was simply that if there is a right in all cases, when the jury sit in a jury case, in a number of cases they will say, "Why hasn't he chosen a judge alone? This surely means that he is trying to pull the wool over our eyes". Largely for that reason, the proposal was rejected and, I believe, rightly so. I believe that we should have a trial process which is appropriate throughout.
	My second point is that the percentage of success in long fraud cases was quoted as being, I believe, in the region of 80 per cent. I stress that that figure was achieved without the procedure alterations which have been advised and to which the Government have paid no attention at all. There is no reason not to expect that the figure of 80 per cent will increase if the procedures are improved. Therefore, I suggest to your Lordships that the amendment is not appropriate and that we should stick to juries throughout.
	Perhaps I may remind your Lordships that jury trial carries the perception of a better class of justice—certainly with the minorities. That perception will not be brought to an end. It is based in part on sheer prejudice but also in part on the fact that judges subconsciously have a bias pro prosecution. That is understandable. At least 90 per cent of prosecution cases have been thoroughly investigated and proceedings brought as a result. The judge becomes case-hardened and says to himself, consciously or subconsciously, "I have heard all this before". That is one reason for the perception. But the perception is there; it is very strong; and we ignore it at our peril.

Baroness Scotland of Asthal: My Lords, I have listened with great care to everything that noble Lords have said. I was a little surprised by the lack of temperance on the part of both the noble Lords, Lord Hunt and Lord Thomas of Gresford. Noble Lords will know that, on occasions too numerous to mention, I have commended your Lordships' House for the dedication and thoroughness with which it has addressed these issues. But perhaps I may say with the utmost gentleness that I do not consider the way that the issues relating to juries were dealt with necessarily have been your Lordships' finest moment.
	This House has had a tradition of scrutinising Bills thoroughly and well. First, we debate them extensively in Committee. It is our custom to use the Committee stage for that purpose. We discuss Bills clause by clause, often examining the pros and cons of each and every comma and word in the clauses. However, we did not give Part 7 of this Bill our customary care. Your Lordships will know that we had one long, extended and very full debate, after which the whole of this part of the Bill was struck down. We thus deprived ourselves of our usual opportunity for detailed scrutiny. That is something which, speaking entirely for myself, I deeply regretted.
	One of the joys of going through a Bill—a joy it is on occasion, although not always—is that we are able to debate together with great particularity how we should weigh one element of a Bill against another. After that, on Report, we usually craft something which we can then go on to divide upon where we disagree. Before we congratulate ourselves too much, it is right that we should have the humility to accept that in dealing with Part 7 we did not do that. Some noble Lords will say that thereby we did not do our duty, so I deeply regret the failure of this House to engage in detailed and constructive debate on these provisions.

Earl Russell: My Lords, is the Minister making a virtue of the fact that the Bill suffered from a lack of defenders?

Baroness Scotland of Asthal: No, my Lords. It did not suffer from a lack of defenders, but this part of the Bill suffered from a lack of scrutiny. We were entitled to undertake that scrutiny because we believe that it would have advantaged the House to be able to hear the detail.
	I turn to the questions raised specifically on Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A. I agree that it is somewhat curious that those who support the right to jury trial—among others, the noble Lords, Lord Hunt and Lord Thomas of Gresford, did so—say that they wish to deny the defendant the right not to have a jury trial. That is an odd arrangement.
	I appreciate that in my opening I conflated the two amendments. In due course I shall deal with Amendment No. 42 in its proper place by addressing our amendment.
	The noble Lord, Lord Borrie, is right to point to the issues of complexity and length in trials. I respectfully agree with him. The noble Lord, Lord Thomas of Gresford, asked about the special ability that the judge has. The noble Lord knows that, if there is a particular need, it is usual for the Lord Chancellor or the list office to alight upon a judge who may have the type of experience, through practice or through sitting in a certain division—the Commercial Division judges are not unfamiliar with commercial and other frauds—that makes him or her more suited to dealing with certain trials. That is an advantage.
	I turn to my noble and learned friend Lord Morris of Aberavon. Without reservation I say to him that we too greatly value and respect the jury system. The noble and learned Lord will remember that each time there has been an encroachment on jury trials, there has been an outcry that that will mean the end of the jury. The noble and learned Lord will remember the tears that were shed for the loss of peremptory challenges. No longer would we be able to challenge jurors when choosing a panel. The noble Lord will remember the tears shed in relation to the abandonment of unanimity and the move to majority verdicts. That was supposed to signal the end of jury trials as we know them. Juries are still with us.
	The arguments made in relation to this part of the Bill were also made, as I understand from the noble and learned Lord, Lord Cooke, in New Zealand. People in New Zealand thought that such measures would mean the end of the system as they knew it. But the provisions have rarely been used and they have been targeted on those cases that really need them. Further, the judge retains a discretion about whether the provisions should be used.
	I am curious and somewhat taken aback by the hostility aimed at Clause 41, because it gives defendants a choice that they do not have at present about the way in which they are tried. We find it puzzling that noble Lords opposite are so vehement in their defence of a defendant's right to choose one context, but should oppose this reasonable right. We shall stand firm on the matter.
	We also intend to stand firm on the other provisions in Part 7 which deal with those who seek to manipulate the system to evade justice. Clauses 43 and 45 provide an effective and a proportionate solution to the increasing problems of jury tampering and Clause 42, to which I have already spoken and to which I turn again briefly, does that too. New Zealand is not alone in benefiting from using these provisions. I am sure noble Lords are aware that they are also used in the United States, Canada and Australia. We do not seek to do anything that is terribly novel.
	I have not dealt with the comments made by the noble and learned Lord, Lord Ackner. We are not pulling the wool over anyone's eyes. We are being absolutely frank about what is happening. My noble friend Lord Davies of Coity is right to say that we have to be realistic when considering how the provisions will be viewed and that members of the public who will be asked to participate in these trials will be very concerned about the extent of the duty that they will be invited to undertake. I am gratified to hear the acceptance by the noble Lord, Lord Renton, that such fraud trials can be long, very difficult and complex. His experience is that on occasion jurors are not able to deal with them appropriately or at all.
	The noble and learned Lord, Lord Ackner, raised the issue of the Serious Fraud Office and its conviction rate. This matter is not about conviction rates. We do not seek to raise the conviction rates in this regard. These provisions attempt to address real problems in trying to manage certain fraud cases. The conviction rate reflects not the difficulty of rendering such cases manageable for jurors but the damage that is done to the public interest when it is not possible to try defendants on charges that truly represent the extent of their alleged offending. That was a matter underscored by my noble friend Lord Borrie.
	Perhaps I can explain the purpose of the government's amendments.

The Earl of Onslow: My Lords, if the Minister is saying that these provisions will not affect the conviction rate, that means that we are getting matters roughly right. If we are getting matters roughly right, why alter the situation?

Baroness Scotland of Asthal: My Lords, your Lordships will remember that the Serious Fraud Office has made it plain that there are cases that it chooses not to bring before the courts because of their complexity, length and difficulty. Already a sifting process is taking place. We wish to see all those cases that should properly be brought to court, brought to court. In speaking to the amendment earlier I said that the Government were concerned about cases in which there were secondary participants against whom proceedings were not taken in order to enable the case to go forward. That is not justice and we should be able to deal with the principal and the subsidiary aiders and abettors.

Lord Carlile of Berriew: My Lords, has the Serious Fraud Office told the noble Baroness how many cases it has not brought to court because of complexity? She says that there have been such cases so I ask how many.

Baroness Scotland of Asthal: My Lords, I do not have the numbers. I see the noble Lord shaking his head. I do not know whether he suggests that that is not a problem or a difficulty or whether he suggests that this matter is being fabricated.

Lord Carlile of Berriew: My Lords, the noble Baroness made an assertion that we are entitled to assume was evidentially based. I merely ask her to give the House that evidence.

Baroness Scotland of Asthal: My Lords, I am certainly willing to write to the noble Lord setting out those matters. These are Commons amendments.

Lord Carlile of Berriew: My Lords, the noble Baroness says that she is willing to write to me, which is extremely kind of her. Is she willing to write me with that information before the Bill returns to the House later today?

Baroness Scotland of Asthal: My Lords, the noble Lord knows the answer to that question: I shall use my best endeavours. I hope the House accepts that on each occasion I have given such an undertaking, that is precisely what I have done. On no occasion when a question has been asked of me have I not sought to comply with it in its entirety. I hope that the House will accept that I have treated all Members with the utmost courtesy and care.

Lord Carlile of Berriew: My Lords, I am not suggesting for one moment that the noble Baroness has not treated the House with courtesy, but she made an assertion which is evidential. I do not ask her to write to me; I simply ask her to give the House the evidence.

Baroness Farrington of Ribbleton: My Lords, perhaps I may remind the noble Lord, Lord Carlile, that it is the speaker's choice to give way. My noble friend has given way on, I think, five occasions. The noble Lord has had an answer to his question. I sense that the mood of the House is that the matter should cease at that point.

Lord Davies of Coity: My Lords, I have absolutely no doubt whatever that my noble friend's statement can be substantiated. What is more important to this House on the question asked by the noble Lord, Lord Carlile, is whether the noble Lord's view would change if the answer is confirmed.

Baroness Scotland of Asthal: My Lords, the Government's amendments respond to concerns about the possibility that Clause 42, as currently drafted, risks widening the potential application of the clause to cases which are not akin to fraud. That matter has been raised on a number of occasions. The Government have therefore thought very carefully about how to craft Amendment No. 42. They accept that the danger of cases slipping through which are not akin to fraud is in fact negligible.
	The reference to,
	"of a financial or commercial nature or which relate to property",
	is one element only of a deliberately high and cumulative test. None the less, we have listened and we have amended Clause 42 to restrict its application fairly and squarely to serious fraud trials, which is the main mischief to which the clause was directed.
	Let me emphasise that in the light of the comments made in another place, these amendments in no way serve to fetter the discretion of a judge. That is certainly not the intention, nor, I respectfully suggest, is it the effect. The judge will continue to need to satisfy himself that the condition in subsection (4) is met regarding the length and/or complexity of the trial. He will also need to have regard to any step which could be taken to reduce the length and/or complexity of the trial. Your Lordships will find that set out in subsection (6).
	I hope that in the light of these amendments the House will be able to reconsider its decision.

Lord Elton: My Lords, before the noble Baroness sits down, will she undertake to send a copy of the moving and restrained prologue to her speech—in which she summarised how your Lordships deal with matters of this kind and reflected on any failure to do so—to the Home Secretary before he next talks about the advantages of the guillotine system?

Baroness Scotland of Asthal: My Lords, I can only reassure the noble Lord that my right honourable friend the Home Secretary is assiduous in his reading and absorption of the matters that go on in your Lordships' House. I am sure that he will have the advantage of looking at Hansard. I make it plain that we shall deal first with the amendments regarding Clause 41. In the next group I shall move the amendment on issues relating to fraud.

Lord Hunt of Wirral: My Lords, I start by thanking the Minister for the courtesy with which she has always listened to debate in the House. She has always given way. I intervened only when I thought she had finished. The House pays her every possible respect for the graciousness with which she approaches these debates; it does not mean that we always agree with her.
	I do not think that the House would want me to answer all the points made. However, I should like to deal with the point on Clause 41. There was an extensive debate in the other place on that clause. I say to the noble Viscount, Lord Bledisloe, and to my noble friend Lord Renton that I thought that the point was adequately dealt with in that debate. Perhaps I may quote the words of the Labour Member of Parliament, Vera Baird. She went into all the reasons why the opt-out should not be allowed. She then remarked that if her right honourable friend the Home Secretary was concerned about safeguarding the principle of jury trial,
	"he cannot allow it to become optional. Once it becomes optional, the reasons why the option is exercised will bring the principle into disrepute. That is the slippery slope on which we are starting today with clause 41".—[Official Report, Commons, 18/11/03; col. 674.]
	I hope he will accept that I thought the noble and learned Lord, Lord Ackner, made a very persuasive series of comments on that issue.
	I should like to spend time dealing with other points, but I think that we are willing to proceed to a decision. All I would say in conclusion is that I believe Mr Blunkett has under-estimated the reasons why we feel so strongly that these clauses should not form part of the Bill. They should in fact have been in another Bill—a mode of trial Bill. That has always been our case. We then could have had the proper research into the jury system that we should have before we start restricting the principle.
	I close by quoting Lord Devlin, who said that trial by jury is,
	"the lamp that shows freedom lives".
	In this House that means a great deal. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 32B) shall be agreed to?
	Their Lordships divided: Contents, 196; Not-Contents, 125.

Resolved in the affirmative, and amendment agreed to accordingly.
	Motion, as amended, agreed to.

LORDS AMENDMENT

33Leave out Clause 42
	The Commons disagree to this amendment but propose the following amendments to the words so restored to the Bill—
	33A Clause 42, page 28, line 34, after "where" insert "(a)"
	33B Page 28, line 35, at end insert "and
	(b) notice has been given under section 51B of the Crime and Disorder Act 1998 (notices in serious or complex fraud cases) in respect of that offence or those offences."
	33C Page 28, line 39, leave out "both of the following conditions are" and insert "the following condition is"
	33D Page 28, line 42, leave out "The first" and insert "That"
	33E Page 29, line 3, leave out subsection (5)
	33F Page 29, line 9, leave out "both of those conditions are" and insert "that condition is"

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 33 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 33A to 33F to the words so restored to the Bill. I spoke to this group of amendments with the previous group; I commend the Commons amendments.
	Moved, That the House do not insist on its Amendment No. 33 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 33A to 33F to the words so restored to the Bill.
	33GLord Hunt of Wirral rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 33 and do agree with the Commons in their Amendments Nos. 33A to 33F to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 33".
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 33 and do agree with the Commons in their Amendments Nos. 33A to 33F to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 33".—(Lord Hunt of Wirral.)

On Question, Whether the said amendment (No. 33G) shall be agreed to?
	Their Lordships divided: Contents, 197; Not-Contents, 125.

Resolved in the affirmative, and amendment agreed to accordingly.
	Motion, as amended, agreed to.

LORDS AMENDMENT

34 Clause 43, Leave out Clause 43 The Commons disagree to this Amendment but propose the following Amendments to the words so restored to the Bill—
	34A Page 29, line 26, after second "is" insert "evidence of a"
	34B Clause 43, page 29, line 37, at end insert—
	"(7) The following are examples of cases where there may be evidence of a real and present danger that jury tampering would take place—
	(a) a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,
	(b) a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,
	(c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 34 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill.
	I come now to Clause 43 which, together with Clause 45, is concerned with the serious and persistent problem of jury tampering. The background to these provisions is the increasingly sophisticated and determined attempts that are made in our courts to interfere with the course of justice by tampering with the jury. When the nature and extent of jury tampering threatens the fairness of the trial, the courts currently have no option other than to discharge the jury and terminate the trial, which clearly does not serve the interests of justice. Nor can we possibly expect members of the public who have given up their time to serve on a jury to undergo the stress and anxiety of actual intimidation, a genuine fear of intimidation or the misery of round-the-clock surveillance over a significant period of time.
	Clauses 43 and 45 together provide a strong and effective deterrent to those who would seek to wreck trials and subvert due process by tampering with the jury. They send out a clear message that attempts to pervert the course of justice in that way will not be tolerated. Far from undermining the jury, the proposals will protect its integrity. I emphasise that the clauses are intended as a last resort. Jury protection measures will be appropriate and effective in most cases when there is a risk of tampering. I also remind the House that the test for jury exclusion in these circumstances is a high one, and deliberately so: we anticipate that only a handful of cases each year will meet it.
	Police protection is available when the court considers that there is a substantial risk that the jury may be subject to intimidation. In the most serious cases, 24-hour police protection may be ordered, with officers accompanying jurors to their homes and other places outside the court. Over the past three years, that level of jury protection has been provided in approximately four to five trials per year. The cost to the Metropolitan Police over the past two years for full jury protection has been £9 million. That is equivalent to 26,627 police days a year diverted from mainstream policing in London, or an additional 130 officers on the beat.
	Increasingly, however, organised and sophisticated criminals are able to intimidate jurors despite protective measures, including full police protection. Jurors' mail, telephone calls and bank accounts are, quite rightly, not vetted. Nor are members of their family protected. Current protection arrangements cannot prevent approaches by means of telephone calls, letters, bribery or attacks—or threatened attacks—upon family members. Clauses 43 and 45 are designed specifically to deal with situations that the existing measures cannot satisfactorily address.
	Questions have been asked on a number of occasions, within and without this House, about the extent and seriousness of the problem of jury tampering. As far as seriousness is concerned, I have already referred to the four to five cases each year that require full jury protection. The Association of Chief Police Officers recently reported evidence of an increasing problem of jury tampering. Chris Fox, its president, wrote about this issue on 27th October describing,
	"a clear picture of an ominous and growing problem",
	which is, moreover, increasingly not confined to London and other big conurbations such as Liverpool, but in evidence throughout the country.
	If serious jury tampering is allowed to continue and allowed to succeed unchecked, the outlook is grim. In a letter to my noble and learned friend the Lord Chancellor, Ian Blair, Deputy Commissioner of the Metropolitan Police, and John Burbeck, head of criminal justice at ACPO, outlined their fears of the possible consequences in the following way:
	"There is a tier of criminals in this country who are prepared to go to any lengths to evade justice. It is a fact that jury intimidation exists as a consequence of those people. If the current system cannot cope with the threat, and if the system is not improved, there will be a group of violent, sophisticated and dangerous criminals who may truly become untouchable".
	A few recent examples make the point all too vividly. In August 2002, at Liverpool Crown Court, the trial of six defendants for serious drug offences collapsed because of jury tampering. Two jurors were threatened and a third juror was offered £10,000 to return a verdict of not guilty. The trial was in its fifth week and is estimated to have cost in excess of £1 million. In autumn 2001 at Kingston Crown Court, jurors hearing a case had their cars sprayed with paint stripper. The jury was discharged and special protection was given to the retrial jury. During a trial in the west Midlands in July 1999, in which several witnesses were physically assaulted, three members of the jury were threatened on their way home from the court. The jury foreman was approached by a man who gestured that he was going to shoot him. Those are not fanciful cases; they are real, pressing and pernicious.
	We have said, throughout the passage of the Bill, that we would welcome constructive suggestions for improving it. It is with great regret that I say that they have not been forthcoming in the way that we would have liked in relation to Part 7. None the less, the Government moved amendments to Clauses 43 and 45 when the Bill was debated yesterday in another place, in the hope of finding a way forward on these important provisions.
	The Government's amendments to Clause 43 put beyond doubt the fact that there must be evidence of a real and present danger of jury tampering before the first condition for a trial to be conducted in the absence of a jury is met. Amendment No. 34B inserts a new subsection at the end of the clause that gives examples of the sort of evidence that may be involved. It states that they are:
	"(a) a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,
	(b) a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,
	(c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial".
	I hope that the amendments make it abundantly plain, if it was not before, that there is no question of the police and/or prosecution simply whispering in the judge's ear, in order to secure a juryless trial. Firm and substantial evidence of risk will be needed for an application for juryless trial to succeed. Our amendments make that clear and, in doing so, answer the concerns expressed by Her Majesty's loyal Opposition and those voiced in the other place by others who have spoken.
	Amendments Nos. 36A and 36B, to Clause 45, also attempt to find a way forward. They take on board opposition amendments tabled in Committee and on Report in another place. They make it clear that jury tampering must be the primary cause of the jury discharge and that the judge, having discharged the jury, must make an order for the trial to continue without a jury only if he or she is,
	"satisfied that jury tampering has taken place".
	Yesterday, in another place, the Opposition tabled amendments to Clauses 43 and 45, with the aim of further limiting the already restricted circumstances in which a juryless trial could take place, where there is tampering or the risk of it. I must confess that I share the puzzlement of my right honourable friend the Home Secretary about those amendments. They are not entirely logical.
	The illogicality is apparent in the fact that they set a different test to be satisfied in respect of each clause. During yesterday's debate, Mr Dominic Grieve, the honourable Member for Beaconsfield, explained that that was because the test in respect of the risk of tampering should set a higher threshold than the test in Clause 45 for cases in which tampering has actually occurred. As the Government's amendments to Clause 43, I hope, make clear, evidence of jury tampering in a previous trial is, precisely, an example of the type of evidence that might be presented as evidence of a risk that jury tampering would take place. It also does not make sense to acknowledge the burden on the jury of police protection in one set of circumstances and disregard it in similar circumstances.
	That condition addresses the question of whether we can reasonably expect members of the public to come forward and undergo the stress and anxiety of actual intimidation or a genuine fear of intimidation and the misery of round-the-clock surveillance over a lengthy period. Clearly, Her Majesty's loyal Opposition and others who sit opposite do not share our deep concern.
	The amendments tabled by the Opposition in another place also ratchet up the interests of justice test in Clauses 43 and 45 to require there to be a "great" or "overwhelming" likelihood that jury tampering would take place notwithstanding any steps that might be taken to prevent it. I understand the concerns that underlie the amendments. It is our belief that the clauses already meet those concerns. If I can paraphrase what was said in the other place, I can assure Mr Grieve that they already require the court to make examinations in minute detail, before ordering that a trial be conducted or continued without a jury. In responding to that point, I invite the House to remember that Clause 43 draws on existing case law on jury protection applications, which requires the judge to order full police protection for the jury only where there is a real and present danger of jury tampering.
	We cannot accept the Opposition's amendment to Clause 45, which would remove the judge's power to continue the trial alone, following discharge of the jury because of tampering. The amendment is based on concerns about the impartiality of the judge, who, having heard information that may be prejudicial to the defendant, goes on to sit as fact finder in the trial. However, I remind the House that judges routinely direct themselves to disregard prejudicial evidence. Having detailed knowledge of such information does not necessarily mean that the judge must automatically be considered prejudiced. Rather, the key question must be whether there are any ascertainable facts that would raise legitimate and objectively justified doubts about a judge's impartiality, and we are not convinced that in such cases, in general, there will be. I remind your Lordships that the judge will be able to do justice in such a situation, as he will have a discretion.
	Of course, a judge who felt unable to take on a case because he or she feared that he or she would not be able to hear it with the requisite impartiality would not be obliged to do so. That established principle is already reflected in the Bill. I am sure that noble Lords will join me in expressing confidence in the ability of the judge to exercise discretion in that way and to discharge himself or herself, if he or she feels that that would be in the interests of justice.
	Several questions were asked about the way in which prosecution applications under Clause 43 would be made in circumstances involving sensitive information. The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. We are also confident that they will work equally well when used in the course of an application under Clause 43.
	Moved, That the House do not insist on its Amendment No. 34 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill.—(Baroness Scotland of Asthal.)

Lord Hunt of Wirral: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 34 and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 34".

Lord Hunt of Wirral: My Lords, I understand that Amendment No. 36C is consequential on Amendment No. 34C.
	I want to make the point that, to some extent, we have already covered this subject in the opening debate when we responded to the Minister in covering a range of situations relating to non-jury trial. However, when the Minister read out that portion of her speech which did not seem to come from her, but rather from a written document—the point at which she remarked that she believed that those opposing this clause did not understand the depth of the Government's concern—I believe that she made a grave error. During these debates we have constantly declared war on any form of intimidation and we want to join with the Government in ensuring not only that the intimidation of a jury does not take place, but that the intimidation of a judge—some very serious cases have been reported recently—of parties or of witnesses also does not take place. At some stage we would welcome a dialogue with the Minister and her colleagues on seeking to increase the sentences for jury tampering, judge or witness tampering, or other intimidation of any of the parties. At the moment the penalties are not sufficiently severe. We declare war on intimidation of any kind.
	All I wish to say in addition to my previous comments is that I thought that my honourable friend Mr Grieve went into considerable detail in explaining his amendment. However, it was not tabled yesterday, like the government amendments; it was tabled six months ago. When the Minister takes credit for having come forward with these amendments, it should be noted that the Government produced them only 36 hours ago, but we are talking about a debate that took place in this House on 15th July. Only yesterday morning did we first see the Government's proposed new wording.
	Furthermore, there are defects. Members of all parties are nervous about allowing a judge who has just received evidence of jury tampering then to continue to sit on his own. When Mr Marshall-Andrews spoke yesterday from the Labour Back Benches to agree with the points that my honourable friend Mr Grieve was making, that was a most telling intervention. So we ask again: please may we have co-operation from the Government to arrive at a formula that would meet this very serious situation? In effect, I am saying: please may we have some constructive engagement instead of sudden, last-minute amendments which are defective—those defects were pointed out yesterday in the other place? We need to get this right. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 34 and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 34".—(Lord Hunt of Wirral.)

Lord Morris of Aberavon: My Lords, I thank my noble friend on the Front Bench for her careful explanation of what is intended. As we know, real difficulties can arise in certain cases. Fortunately, as she explained, they are few in number, but the difficulties relate to very serious cases which involve substantial allegations. I have some experience of this, having been for some two-and-a-half years the Attorney-General with responsibility for Northern Ireland.
	The purpose of my intervention is to say this: given the background of what we are dealing with, can my noble friend tell us whether she is satisfied that no difficulties would arise from the first sentence of Amendment No. 34B, in seeking to prove,
	"where there may be evidence of a real and present danger that jury tampering might take place"?
	Is such evidence to be heard in open court, obviously on oath? Further, does she envisage any of the same problems arising from proving this particular requirement?

Lord Monson: My Lords, the noble Lord, Lord Hunt, claimed that Amendment No. 36C is consequential on Amendment No. 34C. While I realise that I am deficient in legal expertise, that does not appear to be so; they are quite separate matters. Clause 45 stands alone and is not dependent on the passing of Clause 43.

Baroness Anelay of St Johns: My Lords, I rise briefly to assist the noble Lord, Lord Monson. We took advice on this from the Clerk at the Table and consulted the Government. We have all received the same advice. That was the reason why my noble friend Lord Hunt referred to Amendment No. 36C being consequential on Amendment No. 34C.

Lord Thomas of Gresford: My Lords, intimidation is something that must be attacked and Members on these Benches join with all that has been said by the noble Lord, Lord Hunt. Nothing in this clause would do anything about intimidation. It provides that, if there has been intimidation, any subsequent trial would be held without a jury.
	The Minister referred to the cost of protecting juries. No doubt there is a considerable cost, but members of a jury come from the community and they disappear back into the community at the end of their term of jury service, whatever that may be. Therefore they would need to be protected for only a short time. Judges involved in terrorist cases in this country are provided with 24-hour protection for seven days a week. The position is the same in Northern Ireland, where heavy protection is provided for judges all the time. One wonders about the cost of that.
	I say that because in Northern Ireland a judge has been murdered, while in continental systems and in other parts of the world, judges are assassinated from time to time. When we are dealing with serious crime, we must provide full-time protection in those circumstances. So no saving in costs would be made as a result of these provisions. In fact, the costs incurred in protecting juries referred to by the Minister would be rather modest when compared with some of the costs of police protection being incurred today. That is no argument for abolishing the right to trial by jury. We are with the noble Lord, Lord Hunt, in opposition to the Government's plans.

Baroness Scotland of Asthal: My Lords, first, I should like to emphasise in response to my noble and learned friend Lord Morris of Aberavon that the test now applied to have a jury covered for 24 hours a day is very much the same: it is a "real and present danger". Taking the four or five cases that I have already mentioned, the judge must already be satisfied in relation to that test before he would authorise 24-hour protection. We do not think that there would be any difficulty about that. It is clear that the judge will have to assess the potential risk of tampering on the basis of the evidence before him. It would need to be clear and cogent evidence, whatever form it takes and whatever its nature.
	Our amendment simply gives examples. We do not say that these are the totality of circumstances that the court must take into account. We have given them as an exemplar of the quality of evidence that we think would need to be presented before the court could be satisfied that providing protection would be a proper thing to do.
	We can draw comfort from the fact that judges dealing with such cases have used the provision of 24-hour protection very sparingly. One of the reasons for that—one cited on an earlier occasion—is that if one looks at the conviction rate, it would appear that there is a slightly higher conviction rate for those juries under protection than otherwise. That may be due simply to the weight of the evidence, but there is a significant difference and it is something that we must consider.
	I shall take up the point made by the noble Lord, Lord Thomas of Gresford, about the costs incurred in providing protection for judges. I believe that I said earlier in my remarks that it is easier to protect one judge than it is to protect 12 jurors. The nature of the protection is different.
	The robustness of our judges is also different. They take on an enormous responsibility on behalf of the public and discharge it with honour. I pay particular credit to the judges in Northern Ireland who have been discharging that duty in Diplock courts with real courage, dedication and fairness for many years. We do not doubt for a second that we have judges of the kind, nature and calibre necessary to discharge this duty, not only in terms of their own personal courage but also in terms of the way in which they will address matters in the interests of justice.
	I can assure the noble Lord that this is not a cost-cutting exercise. We do not believe that we will save money, but neither do we shy away from addressing the issue. We believe that it is right to take this opportunity.
	A very senior judge indeed mentioned to me that he had spent the last three years of his practice conducting one trial. At the first trial, through some happenstance, inappropriate material managed to get in front of the jury in almost the twelfth month. The first jury was discharged. It was genuinely thought that there had been successful interference with the jury—tampering.
	The second trial proceeded for almost a year when one day a juror ran from the jury box in a state of distress, declaring that he could go on no longer knowing that other members of the jury were in receipt of money and had been tampered with. That trial came to an end and the juror was subsequently prosecuted. The third trial again took a year.
	The point that was made to me was that if those serial criminals had known that the consequence of seeking to tamper with the first jury was likely to be a trial by judge alone, they probably would not have done it in the first place. They may have considered that being tried by 12 good men and women true would be a better option for them. So the fact that there is a backstop of this nature may well act as a deterrent to those who would wrongly seek to undermine the interests of justice.
	That was told to me by a very senior judge indeed who had, before that three-year experience, been of a view similar to the one expressed in this House on previous occasions. We are dealing with a very different world today than in the past—a world in which my noble and learned friend Lord Morris was privileged to serve.

Lord Donaldson of Lymington: My Lords, perhaps I may say one word, and say it very briefly. All this discussion about physical protection for the jury overlooks the bribery element.

Lord Bassam of Brighton: My Lords, the debate has now concluded and we should now proceed to a decision on the amendment.

Lord Hunt of Wirral: My Lords, I join with the Minister in paying tribute to our judiciary. Such support comes from all sides of the House. That is why we have tabled a whole series of amendments to the Bill which are designed to uphold the independence of the judiciary in which we have such confidence.
	We have debated the issue. I hope that there will be constructive engagement. I believe that I speak for all noble Lords when I say that we want to stamp out jury intimidation—let us unite; let us have constructive engagement—but, as yet, the Government's new clauses, which appeared for the first time yesterday, have not got it right. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 34C) shall be agreed to?
	Their Lordships divided: Contents, 187; Not-Contents, 135.

Resolved in the affirmative, and amendment agreed to accordingly.
	Motion, as amended, agreed to.

LORDS AMENDMENT

35 Clause 44, Leave out Clause 44 The Commons disagree to this amendment for the following reason—
	35A Because it is necessary to make provision about the procedure for applications for trials to be conducted without a jury.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 35, to which the Commons have disagreed for their reason numbered 35A. I have spoken to this amendment with Amendment No. 34.
	Moved, That the House do not insist on its Amendment No. 35 to which the Commons have disagreed for their reason numbered 35A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

Clause 45, Leave out Clause 45
	The Commons disagree to this Amendment but propose the following Amendments to the words so restored to the Bill—
	36A Page 31, line 5, leave out "(or partly because)"
	36B Page 31, line 12, after "jury" insert "if he is satisfied that jury tampering has taken place"

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 36 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 36A and 36B to the words so restored to the Bill. I have spoken to these amendments with Amendment No. 34.
	Moved, That the House do not insist on its Amendment No. 36 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 36A and 36B to the words so restored to the Bill.—(Baroness Scotland of Asthal.)

Lord Hunt of Wirral: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 36 and do agree with the Commons in their Amendments Nos. 36A and 36B to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 36".

Lord Hunt of Wirral: My Lords, I have spoken to this amendment with Amendment No. 34C.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 36 and do agree with the Commons in their Amendments Nos. 36A and 36B to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 36".—(Lord Hunt of Wirral.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

Clause 46, Leave out Clause 46
	The Commons disagree to this Amendment but propose the following Amendment to the words so restored to the Bill—
	37A Page 32, line 7, at end insert— "(8) The Secretary of State may make an order containing provision, in relation to proceedings before the Court of Appeal under this section, which corresponds to any provision, in relation to appeals or other proceedings before that court, which is contained in the Criminal Appeal Act 1968 (c. 19) (subject to any specified modifications)."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 37 to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 37A to the words so restored to the Bill. I have spoken to this amendment with Amendment No. 34.
	Moved, That the House do not insist on its Amendment No. 37 to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 37A to the words so restored to the Bill.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

Leave out Clause 47
	The Commons disagree to this Amendment but propose the following Amendment to the words so restored to the Bill—
	38A Clause 47, page 32, line 30, at end insert— "(6) Nothing in this Part affects—
	(a) the requirement under section 4 of the Criminal Procedure (Insanity) Act 1964 (c. 84) that a question of fitness to be tried be determined by a jury, or
	(b) the requirement under section 4A of that Act that any question, finding or verdict mentioned in that section be determined, made or returned by a jury."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 38 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 38A to the words so restored to the Bill. I have spoken to this amendment with Amendment No. 34.
	Moved, That the House do not insist on its Amendment No. 38 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 38A to the words so restored to the Bill.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

39 Clause 48, Leave out Clause 48 The Commons disagree to this amendment for the following reason—
	39A Because it is necessary to make provision in relation to rules of court.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 39, to which the Commons have disagreed for their reason numbered 39A. I have spoken to this amendment with Amendment No. 34.
	Moved, That the House do not insist on its Amendment No. 39, to which the Commons have disagreed for their reason numbered 39A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

40 Clause 49, Leave out Clause 49 
		
	
	The Commons disagree to this amendment but propose the following amendments to the words so restored to the Bill—
	40A Clause 49, page 34, line 14, at end insert— "(9A) In section 46(8) for "Criminal Appeal Act 1968 (c. 19)" substitute "Criminal Appeal (Northern Ireland) Act 1980 (c. 47)"."
	40B Clause 49, page 34, line 21, at end insert— "(11A) In section 47(6)—
	(a) for "section 4 of the Criminal Procedure (Insanity) Act 1964 (c. 84)" substitute "Article 49 of the Mental Health (Northern Ireland) Order 1986",
	(b) for "section 4A of that Act" substitute "Article 49A of that Order", and
	(c) for "that section" substitute "that Article"."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 40, to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 40A and 40B, to the words so restored to the Bill. I have spoken to the amendments under Amendment No. 34.
	Moved, That the House do not insist on its Amendment No. 40, to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 40A and 40B, to the words so restored to the Bill.

On Question, Motion agreed to.

LORDS AMENDMENTS

100 Clause 78, page 52, line 22, leave out "and" The Commons disagree to this amendment for the following reason—
	100A Because the restrictions already imposed on the consent of the Director of Public Prosecutions are sufficient
	101 Page 52, line 23, at end insert ", and
	(c) he has sought leave from a judge of the Crown Court on an ex-parte application." The Commons disagree to this amendment for the following reason—
	101A Because the restrictions already imposed on the consent of the Director of Public Prosecutions are sufficient.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendments Nos. 100 and 101 en bloc, to which the Commons have disagreed for their reasons 100A and 101A.
	One of the important safeguards provided by the Bill in respect of retrials for serious offences is that the personal consent of the Director of Public Prosecutions will be needed to authorise certain steps being taken by the police to reinvestigate a person previously acquitted of a qualifying offence. As originally drafted, the Bill provided that the Director of Public Prosecutions would not be able to give his consent to reopen an investigation unless he considered that, firstly, there was new evidence, or would be new evidence, as a result of a reinvestigation; and, secondly, that a reinvestigation would be in the public interest.
	The amendment would seek to add a further requirement that the DPP should seek the leave of a Crown Court judge before consenting to a reinvestigation. We consider the amendment to be unnecessary. The Director of Public Prosecutions is senior and experienced enough to take a decision on whether to allow the police, in reopening an investigation into an acquitted person, to take the steps set out in subsection (3). He is sufficiently independent of the police to review their request for a reinvestigation. The Government consider that having him take this decision provides the necessary safeguard to ensure that the acquitted person is not being harassed by the police. At the stage of reinvestigation, it is quite proper for the decision to reinvestigate to be taken by the prosecuting authorities rather than the courts.
	Involving a Crown Court judge in proceedings at this stage would also make the process more cumbersome. There are many layers of safeguard already built in to the exercise of the powers listed in subsection (3). I do not believe that requiring the DPP to secure the leave of a Crown Court judge is necessary before a reinvestigation can get to the point of the exercise of these powers. The safeguards on reinvestigation need also to be seen in context. Before there can be an application for a retrial, the DPP's consent is required again. He must be satisfied at that stage that there is new and compelling evidence and that it is in the public interest for the application to be made. That application is then determined by the Court of Appeal. We believe that it is at that stage that a judicial decision in required. As such, I invite noble Lords not to insist on this amendment. I beg to move.
	Moved, That the House do not insist on its Amendments Nos. 100 and 101 en bloc, to which the Commons have disagreed for their reasons 100A and 101A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

114Before Clause 90, Insert the following new Clause— "Evidence of bad character
	(1) The Police and Criminal Evidence Act 1984 (c. 60) ("the 1984 Act") is amended as follows.
	(2) After section 82 of the 1984 Act (Part VIII—interpretation) insert—
	"PART VIII A
	EVIDENCE OF BAD CHARACTER
	82A Bad character
	References in this Part to evidence of a person's bad character are references to evidence which shows that—
	(a) he has committed an offence, or
	(b) he has behaved, or is disposed to behave, in a way that, in the opinion of the court, would be viewed with disapproval by a reasonable person. 82B Requirement of leave
	(1) In criminal proceedings, evidence of a person's bad character is admissible only with leave of the court, unless the evidence—
	(a) has to do with the alleged facts of the offence with which the defendant is charged, or
	(b) is evidence of misconduct in connection with the investigation or prosecution of that offence. (2) This section does not apply in relation to an item of evidence if—
	(a) all parties to the proceedings agree to the evidence being admissible, or
	(b) in the case of evidence of the defendant's bad character, the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it. 82C Non-defendant's bad character
	In the case of evidence of the bad character of a person other than the defendant, the court is not to give leave under section 82B unless the evidence falls within section 82D or 82E. 82D Evidence with explanatory value
	Evidence falls within this section if—
	(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
	(b) its value for understanding the case as a whole is substantial. 82E Evidence going to a matter in issue
	(1) Evidence falls within this section if it has substantial probative value in relation to a matter which—
	(a) is a matter in issue in the proceedings, and
	(b) is of substantial importance in the context of the case as a whole. (2) In assessing the probative value of evidence for the purposes of this section, the court must have regard to the following factors (and to any others it considers relevant)—
	(a) the nature and number of the events, or other things, to which the evidence relates;
	(b) when those events or things are alleged to have happened or existed;
	(c) where—
	(i) the evidence is evidence of a person's misconduct, and
	(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
	(d) where—
	(i) the evidence is evidence of a person's misconduct,
	(ii) it is suggested that that person is also responsible for the misconduct charged, and
	(iii) the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.
	(3) In subsection (2)(d) "misconduct charged" means the misconduct constituting the offence with which the defendant is charged.
	82F Defendant's bad character
	In the case of evidence of the defendant's bad character, the court is not to give leave under section 82B, unless the evidence falls within section 82G, 82H, 82I, 82J or 82K. 82G Evidence with explanatory value
	(1) Evidence falls within this section if the following three conditions are met.
	(2) The first condition is that, without the evidence, the court or jury would find it impossible or difficult properly to understand other evidence in the case.
	(3) The second condition is that the value of the evidence for understanding the case as a whole is substantial.
	(4) The third condition is that the court is satisfied—
	(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or
	(b) that the value of the evidence for understanding the case as a whole is such that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible. 82H Evidence going to a matter in issue
	(1) Evidence falls within this section if the following two conditions are met.
	(2) The first condition is that the evidence has substantial probative value in relation to a matter which—
	(a) is a matter in issue in the proceedings, and
	(b) is of substantial importance in the context of the case as a whole. (3) The second condition is that the court is satisfied—
	(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or
	(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of—
	(i) how much probative value it has in relation to the matter in issue,
	(ii) what other evidence has been, or can be, given on that matter, and
	(iii) how important that matter is in the context of the case as a whole. (4) In determining whether the two conditions are met, the court must have regard to the factors listed in section 5(2) (and to any others it considers relevant).
	(5) For the purposes of this section, whether the defendant has a propensity to be untruthful is not to be regarded as a matter in issue in the proceedings.
	(6) Only prosecution evidence can fall within this section.
	82I Evidence going to credibility
	(1) This section applies only where—
	(a) the defendant makes an attack on a person's character, and
	(b) the effect of the attack is to suggest, or to support a suggestion, that the person has a propensity to be untruthful. (2) For the purposes of this section, a defendant makes an attack on a person's character where—
	(a) he adduces evidence of the person's bad character, other than—
	(i) evidence that has to do with the alleged facts of the offence with which the defendant is charged, or
	(ii) evidence of misconduct in connection with the investigation or prosecution of that offence,
	(b) he asks questions in cross-examination that are intended to elicit evidence of the kind referred to in paragraph (a), or
	(c) evidence is given of an assertion made about the person by the defendant—
	(i) on being questioned under caution, before charge, about the offence with which he is charged, or
	(ii) on being charged with the offence or officially informed that he might be prosecuted for it, and the assertion is such that, if it were made in evidence, the evidence containing the assertion would be evidence of the kind referred to in paragraph (a).
	(3) Evidence falls within this section if the following three conditions are met.
	(4) The first condition is that the evidence has substantial probative value in showing that the defendant has a propensity to be untruthful.
	(5) The second condition is that, without the evidence, the court or jury would get an inaccurate impression of the defendant's propensity to be untruthful in comparison with that of the other person.
	(6) The third condition is that the court is satisfied—
	(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or
	(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of—
	(i) how much probative value it has in showing that the defendant has a propensity to be untruthful,
	(ii) what other evidence has been, or can be, given on that matter, and
	(iii) how important it is, in the context of the case as a whole, to prevent the impression mentioned in subsection (5). (7) In determining whether the three conditions are met the court must have regard to the following factors (and to any others it considers relevant)—
	(a) the nature and number of the events, or other things, to which the defendant's attack relates and of those to which the evidence in question (the responding evidence) relates;
	(b) when those events or things are alleged to have happened or existed;
	(c) how important is the defendant's propensity to be untruthful, and that of the other person, in the context of the prosecution case and of the defence case;
	(d) in a case where this section applies by virtue of subsection (2)(b), whether or not the evidence intended to be elicited is actually given;
	(e) how inaccurate the impression mentioned in subsection (5) would be;
	(f) where the responding evidence is of a spent conviction, the fact that the conviction is spent;
	(g) any risk that admitting the responding evidence would be confusing or misleading, or would unduly prolong the proceedings. (8) Only prosecution evidence can fall within this section.
	82J Evidence to correct false impression
	(1) This section applies only where the defendant is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant.
	(2) Evidence falls within this section if the following two conditions are met.
	(3) The first condition is that the evidence has substantial probative value in correcting the false or misleading impression.
	(4) The second condition is that the court is satisfied—
	(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or
	(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of—
	(i) how much probative value it has in correcting the false or misleading impression,
	(ii) what other evidence has been, or can be, given to correct that impression, and
	(iii) how important it is, in the context of the case as a whole, for that impression to be corrected. (5) For the purposes of this section, a defendant is responsible for the making of an assertion if—
	(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
	(b) the assertion was made by the defendant—
	(i) on being questioned under caution, before charge, about the offence with which he is charged, or
	(ii) on being charged with the offence or officially informed that he might be prosecuted for it, and evidence of the assertion is given in the proceedings,
	(c) the assertion is made by a witness called by the defendant,
	(d) the assertion is made by any witness in cross-examination in response to a question asked by the defendant and intended, in the opinion of the court, to elicit it, or
	(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings. (6) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.
	(7) In subsection (6) "conduct" includes appearance or dress.
	(8) In determining whether the two conditions are met, the court must have regard to the following factors (and to any others it considers relevant)—
	(a) the nature of the impression given by the assertion referred to in subsection (1), and how false or misleading that impression is;
	(b) by whom and in what circumstances the assertion is or was made;
	(c) the nature and number of the events, or other things, to which the evidence in question (the correcting evidence) relates;
	(d) when those events or things are alleged to have happened or existed;
	(e) where the correcting evidence is of a spent conviction, the fact that the conviction is spent;
	(f) any risk that admitting the correcting evidence would be confusing or misleading, or would unduly prolong the proceedings. (9) Where in proceedings before a magistrates' court—
	(a) the defendant is responsible for the making of an assertion which is apt to give the court a certain impression about the defendant,
	(b) the prosecution allege that the impression is false or misleading, and
	(c) in reliance on this section the prosecution propose to apply for leave under section 82B to adduce or elicit evidence to correct the impression, the court must first rule (without being given any details about the evidence) whether, however false or misleading the impression may be, it is unimportant in the context of the case as a whole for it to be corrected; and if the court makes a ruling to that effect, no evidence can fall within this section in relation to the assertion in question.
	(10) Only prosecution evidence can fall within this section.
	82K Evidence going to an issue between co-defendants
	(1) Evidence falls within this section if it has substantial probative value in relation to a matter which—
	(a) is a matter in issue between the defendant and a co-defendant, and
	(b) is of substantial importance in the context of the case as a whole. (2) For the purposes of this section, evidence is not to be treated as having the probative value mentioned in subsection (1) by virtue of its relevance to the question whether the defendant has a propensity to be untruthful unless the nature or conduct of his defence is such as to undermine the co-defendant's defence.
	(3) In assessing the probative value of evidence for the purposes of this section, the court must have regard to the factors listed in section 82B(2) (and to any others it considers relevant).
	(4) Only evidence—
	(a) which is to be (or has been) adduced by the co-defendant, or
	(b) which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, can fall within this section.
	82L Trying more than one offence together
	(1) In section 5 of the Indictments Act 1915 (c. 90) (orders for separate trial etc) insert after subsection (2)—
	"(2A) Where—
	(a) a person is charged with more than one offence in the same indictment,
	(b) the prosecution propose to adduce evidence which is admissible in relation to one of the offences but which, in relation to another, is evidence of the person's bad character and is inadmissible, and
	(c) the person applies before trial for an order that the offences mentioned in paragraph (b) above be tried separately, the court shall grant the application unless satisfied that trying the offences together would not prevent the defendant having a fair trial.
	(2B) The reference in subsection (2A) above to evidence of the person's bad character shall be read in accordance with section 82A of the Police and Criminal Evidence Act 1984 (c. 60)."
	(2) In subsection (3) of that section, after "before trial" insert "(in a case not falling within subsection (2A) above)".
	(3) Where in proceedings before a magistrates' court—
	(a) it is proposed that the defendant be tried for two or more offences together,
	(b) the prosecution propose to adduce evidence which is admissible in relation to one of the offences but which, in relation to another, is evidence of the person's bad character and is inadmissible, and
	(c) the defendant objects before trial to the offences mentioned in paragraph (b) being tried together, the court may order those offences to be tried together only if satisfied that doing so would not prevent the defendant having a fair trial.
	82M Stopping the case where evidence contaminated
	(1) If on a defendant's trial on indictment for an offence—
	(a) evidence of his bad character has been admitted with leave under section 82B, and
	(b) the court is satisfied at any time after the close of the case for the prosecution that—
	(i) the evidence is contaminated, and
	(ii) the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.
	(2) Where—
	(a) a jury is directed under subsection (1) to acquit a defendant of an offence, and
	(b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence, the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1)(b) in respect of it.
	(3) If—
	(a) a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged,
	(b) evidence of the person's bad character has been admitted with leave under section 82B, and
	(c) the court is satisfied at any time after the close of the case for the prosecution that—
	(i) the evidence is contaminated, and
	(ii) the contamination is such that, considering the importance of the evidence to the case against the person, a finding that he did the act or made the omission would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury.
	(4) This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.
	(5) For the purposes of this section, a person's evidence is contaminated where—
	(a) as a result of an agreement or understanding between the person and one or more others, or
	(b) as a result of the person being aware of anything alleged by one or more others who are, or could be, witnesses in the proceedings, the evidence is false or misleading in any respect, or is different from what it would otherwise have been.
	82N Assumption of truth in assessment of probative value
	(1) Subject to subsection (2), a reference in this Act to the probative value of evidence is a reference to its probative value on the assumption that it is true.
	(2) In assessing the probative value of an item of evidence for any purpose of this Act, a court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true.
	82O Court's duty to give reasons for rulings
	(1) Where the court makes a relevant ruling—
	(a) it must state in open court (but in the absence of the jury, if there is one) its reasons for the ruling;
	(b) if it is a magistrates' court, it must cause the ruling and the reasons for it to be entered in the register of the court's proceedings.
	(2) In this section "relevant ruling" means—
	(a) a ruling on whether an item of evidence is admissible only with leave under section 82B;
	(b) a decision whether to give leave under that section;
	(c) a ruling under section 82M. 82P Rules of court
	(1) Rules of court may make such provision as appears to the appropriate authority to be necessary or expedient for the purposes of this Act; and the appropriate authority is the authority entitled to make the rules.
	(2) The rules may require a party who—
	(a) proposes to adduce evidence of a defendant's bad character that is admissible only with leave under section 82B, or
	(b) proposes to cross-examine a witness with a view to eliciting such evidence, to serve on the defendant such notice, and such particulars of or relating to the evidence, as may be prescribed.
	(3) The rules may provide that the court or the defendant may, in such circumstances as may be prescribed, dispense with a requirement imposed by virtue of subsection (2).
	(4) If a party fails to comply with a requirement that has been imposed in relation to an item of evidence by virtue of subsection (2) (and not dispensed with by virtue of subsection (3)) the court may take the failure into account—
	(a) in deciding whether to grant leave under section 82B; and
	(b) where leave is given, in considering the exercise of its powers with respect to costs. (5) The rules may—
	(a) limit the application of any provision of the rules to prescribed circumstances;
	(b) subject any provision of the rules to prescribed exceptions; and
	(c) make different provision for different cases or circumstances. (6) Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it.
	(7) In this section—
	"prescribed" means prescribed by rules of court;
	"rules of court" means—
	(a) Crown Court Rules;
	(b) Criminal Appeal Rules; and
	(c) rules under section 144 of the Magistrates' Courts Act 1980 (c. 43). 82Q Interpretation
	(1) In this Chapter—
	"bad character" is to be read in accordance with section 82A;
	"criminal proceedings" means criminal proceedings in relation to which the strict rules of evidence apply;
	"defendant" in relation to criminal proceedings, means a person charged with an offence in those proceedings; and "co-defendant", in relation to a defendant, means a person charged with an offence in the same proceedings;
	"misconduct" means—
	(a) the commission of an offence, or
	(b) behaviour of a kind that, in the opinion of the court, might be viewed with disapproval by a reasonable person;
	"prejudice", in relation to an item of evidence and a defendant, is to be read in accordance with subsection (2);
	"probative value" is to be read in accordance with section 82N;
	"prosecution evidence" means evidence which is to be (or has been) adduced by the prosecution, or which a witness is to be invited to give (or has given) in cross-examination by the prosecution. (2) For the purposes of this Act, evidence carries a risk of prejudice to a defendant where—
	(a) there is a risk that the court or jury would attach undue weight to the evidence, or
	(b) the nature of the matters with which the evidence deals is such as to give rise to a risk that the court or jury would find the defendant guilty without being satisfied that he was. (3) Where a defendant is charged with two or more offences in the same criminal proceedings, this Act has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.
	82R Minor and consequential amendments
	(1) In section 6 of the Criminal Procedure Act 1865 (c. 18) (witness's conviction for offence may be proved if not admitted)—
	(a) for "A witness may be" substitute "If, upon a witness being lawfully";
	(b) omit "and upon being so questioned, if". (2) In section 1(2) of the Criminal Evidence Act 1898 (c. 36) (restriction of privilege against self-incrimination where defendant gives evidence) at the beginning insert "Subject to section 6 of the Criminal Evidence Act 2001 (inadmissibility of evidence of defendant's bad character)".
	(3) In section 16(2) of the Children and Young Persons Act 1963 (c. 37) (offences committed by person under 14 disregarded for purposes of evidence relating to previous convictions) for the words from "notwithstanding" to the end substitute "even though the Criminal Justice and Police Act 2001 (c. 16) would not prevent the question from being asked".
	82S Repeals
	(1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.
	(2) The rules referred to in subsection (1) include any rule under which, as an exception to the inadmissibility of hearsay evidence, evidence of a person's reputation is admissible for the purpose of proving his character, but only so far as the rule relates to evidence of bad character.
	(3) The following cease to have effect—
	(a) section 1(3) of the Criminal Evidence Act 1898 (c. 36) (which makes provision as to the questions that a defendant may be asked about his bad character in cross-examination);
	(b) section 27(3) of the Theft Act 1968 (c. 60) (admission of evidence of previous convictions for theft etc to prove that defendant knew goods to be stolen)."" The Commons disagree to this Amendment for the following Reason—
	114A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 114, to which the Commons have disagreed for their reason numbered 114A.
	We now come to the part of the Bill dealing with the admissibility of evidence of bad character. There is a wide consensus in support of reform, both across the Floor of this House and throughout the criminal justice system and public. This part of the Bill is intended to provide a new statutory framework for admissibility. Amendments adopted when the Bill was considered on Report in this House would, however, replace the scheme proposed by the Government with, almost exactly, the draft Bill drawn up by the Law Commission that accompanied its 2001 report.
	As I said at that time, there is much in the Law Commission scheme with which we agree, and much of the Law Commission's work and recommendations can be seen in the Government's proposals. However, we also consider that it is right to go further in certain respects. In particular, the Law Commission considered that a generally exclusionary regime should apply, that the rules should be based on excluding this sort of evidence and restricting its admission to circumstances where a number of conditions had been met.
	However, we do not believe that that goes far enough in rebalancing the system to ensure that the rules promote the admission of relevant evidence, subject to considerations of fairness. Without that sort of rebalancing, courts and juries will continue to have withheld from them important evidence that will give them the full and proper picture of a case. In our view, therefore, a different approach is required—one of inclusion, which makes it clear that relevant evidence is admissible.
	It will, of course, be for the prosecution to demonstrate in the course of proceedings how the evidence relates to the case. However, on the question of admissibility, we believe that it should be clear that relevant evidence is admissible, subject to the defendant applying for its exclusion. We therefore stand behind the inclusionary approach adopted by the Government in our original proposals. We have, however, always said that we would listen to constructive suggestions for change, to ensure that our proposals are cast in the best possible form. I indicated on Report a number of specific areas where we would look at our proposals to see whether improvements could be made.
	We have done so, and noble Lords will see on the Marshalled List a number of proposals to modify the Government's scheme as originally introduced. They address a number of key concerns raised in this House and in another place. I shall set out their effect. Three of them are amendments proposed in another place, which I shall deal with first. The first proposed amendment relates to the definition of evidence of bad character. The definition that the Government originally proposed was that recommended by the Law Commission. However, concern was expressed that it was too vague and enabled evidence that was too remote to be admitted—although it will now find its place in the amendment.
	It is important to bear in mind that the Bill will set out the future rules and conditions for admitting that sort of evidence. A wide definition is, therefore, important, otherwise potentially prejudicial evidence will fall outside it and thus outside the rules and safeguards in the Bill. However, we recognise that it is important to be as clear and precise as possible. We have therefore redrafted the definition to tighten the wording as far as possible, while maintaining a comprehensive ambit.
	The revised wording will define evidence of a person's "bad character" as evidence of, or of a disposition towards, misconduct on his part. "Misconduct" is further defined as the commission of an offence, or other reprehensible behaviour. Our intention is to ensure that a wide range of potentially prejudicial evidence is caught by the definition, so that the rules and safeguards in this part of the Bill apply. However, the wording offers a tighter formulation for doing so.
	The second proposal is to ensure that the defendant has clear notice of the prosecution's intention to rely on evidence of his bad character. That reflects a concern that a more inclusionary approach would lead to the admission of evidence where it was not appropriate or safe for it to be heard.
	I make it clear that that is not our intention. We believe that the system needs to be rebalanced to ensure that relevant evidence is admitted unless good reason is shown to exclude it. However, we recognise that there must be a clear opportunity for a defendant to apply to exclude the evidence and for that issue to be decided by the court. That will be facilitated by having a formal requirement of notice. That is achieved by amending the clause dealing with rules of court to make it clear that rules must make provision for the prosecution to give notice.
	Thirdly, there is a proposal in relation to the admissibility of juvenile convictions in adult proceedings—an issue which I know greatly exercised the noble Baroness, Lady Walmsley, among many others. At present, no mention may be made of these convictions. We think that that approach is too restrictive. Our proposals will lift that absolute prohibition, making such evidence admissible subject to the general scheme of the Bill.
	Concern has been expressed that that goes too far, that a person's record at that age will not have the relevance of later offending and that particular considerations apply in the context of juvenile offending. We have sympathy that admission here should take place on a more restricted basis and therefore propose that these convictions should be admissible only where the interests of justice specifically require it. We intend this test to exclude a sporadic record for minor offences, while ensuring that continual or persistent offending or convictions for very serious offences are capable of admission.
	The Government also propose a fourth amendment which I shall move in this House today relating to the presumption that a conviction for the same or a similar offence should be admitted. We are proposing here a different approach and have now linked it to the category of relevant evidence—Clause 93(1)(e)—to make it absolutely clear that we do not intend that presumption to operate to admit irrelevant convictions. It may be helpful if I explain how the presumption will operate.
	Where propensity to commit an offence is a matter in issue in the case, the presumption will be that convictions for the same or a similar offence may be admitted to establish that propensity. Clause 96(1)(a) sets out where a propensity of this kind will be a matter in issue. This is intended to cover all circumstances where this evidence will assist the courts but not where the propensity makes it no more likely that the defendant committed the offence. Where that is so, convictions for the same or a similar offence will, in principle, be admissible. However, that does not mean that such convictions will inevitably be admitted. Subsection (3) makes it clear that the presumption does not apply if the court is satisfied, by reason of the length of time since the conviction, or for any other reason, that it would be unjust. Furthermore, the defendant will be able to apply for the evidence to be excluded on the basis that the probative value of the evidence is outweighed by its prejudicial effect.
	In summary, a person's record for committing the same or similar offences will be admissible, to show propensity, provided that, first, the defendant's propensity to commit the offence charged is relevant to the issues in the case; and, secondly, the probative value of the evidence outweighs its prejudicial effect.
	The rules on evidence of bad character are in pressing need of reform. We must ensure that they are restated in a clear and comprehensive form. The Government's proposals have drawn on the existing jurisprudence and the excellent work of the Law Commission. We have responded to the key concerns expressed and believe that our proposals, modified as suggested, represented the clearest and most satisfactory way forward. For that reason, I move that this House does not insist on its amendments, as set out on the Marshalled List, accepts the amendments to the words restored and accepts the amendments in lieu. We have tried in crafting these new amendments to bring even greater clarity to that which we had before so that our intent is the more plain.
	Moved, That the House do not insist on its Amendment No. 114, to which the Commons have disagreed for their reason numbered 114A.—(Baroness Scotland of Asthal.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 114 to which the Commons have disagreed for their reason numbered 114A, leave out "not".

Lord Kingsland: My Lords, I shall also be speaking to Lords Amendments Nos. 115 to 125 and 127 to 131. These are the consequential amendments in response to the Commons vote to insist on their original text. Before I begin, I should like, if I may, to ask a short question of the noble Baroness. I hope that she will be prepared to answer it. I refer to Clause 105(3)(b) of the Bill as it first reached your Lordships' House, right at the top of page 68. It states:
	"Nothing in this Chapter affects the exclusion of evidence . . . on grounds other than the fact that it is evidence of a person's bad character".
	Is it the noble Baroness's understanding that that provision has the effect of preserving the protection of Section 78 of the Police and Criminal Evidence Act 1984 for the bad character chapter?

Baroness Scotland of Asthal: My Lords, it is.

Lord Kingsland: My Lords, I am much obliged to the noble Baroness.
	The Government are constantly reminding us of the immense value of the Law Commission, which they themselves established in 1965, and of the high quality of its work. Our Amendment No. 114, except in one minor respect, mirrors precisely the Law Commission's draft Bill. In April 1997, my right honourable friend the Leader of the Opposition, when he was Home Secretary, invited the Law Commission to examine the law of bad character with a view to formulating a comprehensive statutory scheme. After four and a half years' work which, as I said on Report, involved historical analysis, international comparisons and extensive consultation, it produced its proposal.
	The Law Commission devoted special attention to the two issues in respect of which we find ourselves at odds with the Government—the issues of the inclusionary presumption and the issue of propensity. The conclusion that the Law Commission reached was based on extensive research and characterised by mature reflection, as anyone reading its report would conclude. If the Government wish to depart from that report and the draft Bill, therefore, they need, in my submission, to demonstrate why the Law Commission report is either flawed or in other respects inferior to their own draft.
	In another place yesterday afternoon the honourable Member, Mr Heath, spoke as follows:
	"If we share"—
	by "we" the honourable Member meant the Government—
	"the same objective, the Law Commission has provided us with an objective way of achieving it. In that case, why on earth are Ministers holding out for their own interpretation of the best way forward? They can adduce no particular evidence of superiority for that approach, which poses clear dangers as identified by the Law Commission in its evidence".—[Official Report, Commons, 18/11/03; col. 715.]
	I listened very carefully to what the noble Baroness said in her speech. I notice that on the inclusionary presumption there has, in effect, been no movement by the Government. So I turn now to the second issue which is of concern to us, which is the issue of propensity. Here the Government have made one concession; that is, to delete Clause 93(1)(d) from the original Bill. Your Lordships will recall that Clause 93(1)(d) reads as follows:
	"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if . . .
	(d) it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged". I have to confess that I find it quite extraordinary that the Government ever contemplated including that clause. Clause 93(1)(d) allows evidence of previous convictions to be put in merely because they exist. There is no requirement for relevance whatever.
	In another place yesterday the honourable Member, Vera Baird, asked rhetorically,
	"What, therefore, is the purpose of paragraph (d)"?
	She answers herself by saying:
	"It can only be to include [such convictions] even though they are irrelevant and do not prove anything".—[Official Report, Commons, 18/11/03; col. 717.]
	On the equally unacceptable relationship between Clause 93(1)(e) and Clause 96(1)(a), despite painstaking discussions with the noble Baroness, who has been the very acme of courtesy and who has made every effort to assist, we have made, I fear, no progress at all.
	Clause 93(1)(e) states:
	"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if . . .
	(e) it is relevant to an important matter in issue between the defendant and the prosecution". Clause 96 is headed by the expression, "Matter in issue between the defendant and the prosecution".
	Clause 96(1)(a) states:
	"For the purposes of section 93(1)(e) the matters in issue between the defendant and the prosecution include—
	(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence".
	First, whatever objectives these provisions seek to achieve, they clearly do not achieve them. If propensity is an issue in the case, following Clause 96(1)(a), all Clause 93(1)(e) is saying is that propensity evidence is relevant to propensity evidence. That is obviously true but it gets us no closer to knowing whether propensity evidence is relevant or not.
	What should your Lordships make of the qualifying word "important" in Clause 93(1)(e)? If the only evidence against the accused is propensity evidence it will certainly be important, but it would be an outrage if an accused could be convicted on propensity evidence alone.
	Finally, what about the expression,
	"except where his having such a propensity makes it no more likely that he is guilty of the offence"?
	The law so far is that propensity evidence is always irrelevant precisely because it makes it no more likely than not that the accused is guilty of the offence. The only circumstances in which past conduct may be led by the prosecution is where it is evidence directly relevant to the issues in the case; that is to say, similar fact evidence.
	Is this an attempt by the Government to preserve the similar fact rule in Clause 96(1)(a), or not? We have sought assurances to these questions both across the Dispatch Box and in private. But despite the noble Baroness's best efforts, to which I again pay tribute, our endeavours have been to no avail. That is why we have tabled Amendment No. 114B.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 114, to which the Commons have disagreed for their reason numbered 114A, leave out "not".—(Lord Kingsland.)

Lord Thomas of Gresford: My Lords, I too pay tribute to the very hard work that the noble Baroness has done in connection with this part of the Bill. The removal of paragraph (d) is a step very much in the right direction, which we welcome. However, the criticisms that the noble Lord, Lord Kingsland, has just made about the relationship between Clause 93(1)(e) and Clause 96 are absolutely valid in our opinion.
	I have looked at Clause 96(1)(a) and (b) for some time and considered what they meant. The words,
	"except where his having such a propensity makes it no more likely that he is guilty of the offence",
	have troubled me in the middle of the night wondering what on earth they are supposed to mean. I have come to the conclusion that whoever drafted the Bill originally had in mind, through Clause 96(1)(a), putting into statutory form the accepted and well known doctrine of similar fact evidence.
	With that in mind, I have attempted today to redraft this section—I have given notice to the Minister of the way in which I did so—in order to make absolutely clear the purpose of that clause. My redraft reads as follows:
	"(1) For the purposes of Section 93(1)(e) the matters in issue between the defendant and the prosecution include:—
	(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, where such a propensity is capable of persuading a reasonable jury of the defendant's guilt on some ground other than his bad character". That encompasses the concept of similar fact evidence because similar fact evidence is not introduced simply to introduce evidence of bad character that will tend to make the defendant look worse in the eyes of the jury; it is there in order to deal with specific issues. I have tried to set those out. I continue by suggesting, "his propensity may be so capable, where it may assist a jury in determining: whether a crime has been committed; . . . the identity of the offender; . . . whether the acts of the defendant were designed or accidental; . . . whether the defendant was acting under a mistake of fact; . . . the truth or falsity of the defendant's allegations that witnesses are mistaken or lying".
	If the noble Baroness will examine the words with those advising her, she will see that it is absolutely clear that Clause 96(1)(a) refers to similar-fact evidence that assists a jury in determining those issues. I hope that we can have some response to that, or that we can have some discussions about it at a later stage.
	Paragraph (b) as drafted is about,
	"the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect".
	What does that mean? In virtually every trial, the issue is whether the defendant is telling the truth or not. On the face of it, the paragraph suggests that it would be possible for the prosecution to introduce evidence of propensity simply by challenging the defendant when he gives his evidence by saying, "You're lying, aren't you?". "No, I am not," he might reply. The prosecution might then say, "Is that what you say? Then let's look at the list of convictions against you".
	It is not permitted in any circumstances in our current trials for the prosecution to raise an issue in cross-examination of a defendant whereby he may cast aspersions against another witness or the police and then say, "Aha! You have now thrown away your shield and we are going to introduce evidence of propensity". I cannot believe that those who drafted the Bill and the Minister intend to make it possible for the prosecution to introduce convictions as part of its case simply because it says that the defendant's case is untruthful.
	With that in mind, I have tried to redraft paragraph (b) as follows. The matter in issue is,
	"the question whether the defendant has a propensity to tell lies where such a propensity is capable of persuading a reasonable jury of the defendant's guilt on some ground other than that he has told lies in the course of the investigation and trial of the case before them".
	Defendants have very often told lies in their interviews with the police, and they may very well lie when they give evidence. However, surely a defendant's propensity to tell lies could come into play only when the prosecution sought to establish something other than that he had simply told lies and that his case was untrue.
	I am sure that I have said enough for noble Lords to appreciate that we are talking about an extremely difficult and technical part of the law, and that it would be far better to fall back on the Law Commission's Bill, which is incorporated by the original amendment and is the result of very considerable research and reflection by that body. Its provisions were in the Bill until the Commons removed them, and in our view they should prevail unless we can come to some very satisfactory understanding with the Government before the Bill is finally put to rest.

Baroness Walmsley: My Lords, it may be appropriate at this point for me to speak to my Amendment No. 126B, which is in the group. Noble Lords will recall that, right from the beginning of the passage of the Bill through this House, a cross-party group of Peers interested in youth justice has sought to remove from the Bill the measure that takes away the complete ban on using bad character evidence of convictions committed by the defendant when he or she was a child. Indeed, when I tested the opinion of the House, noble Lords agreed with that.
	Since then, however, the other place has agreed to an amendment that states that such evidence,
	"is admissible only if the court is satisfied that the interests of justice so require".
	We do not agree with that amendment. The interests of justice can never be served by using in court evidence of offences committed when the defendant was a child, of immature judgment and at an early stage of his or her development, given that at least seven years will have passed since those offences took place.
	Our reasons for feeling that have been rehearsed at great length at early stages of the Bill, so I shall not weary your Lordships with those again at length. I shall simply list them very briefly to remind the House of them. First, there has been inadequate consultation on the effects of the matter. Secondly, there has been no call from expert groups or the public for the complete ban on such evidence about childhood offences. Thirdly, it cannot be relevant to bring such evidence forward in the light of the developmental changes that take place between a child's being 14 and 21, the latter age being when such evidence could be put before the court if the measures in the Bill were passed.
	As I think I pointed out at an earlier stage, the introduction of such a measure is also inconsistent in the light of other actions and statements that the Government have made. Our law, which makes children criminals at 10, is out of step with most other civilised and developed countries, and we must not make it worse by allowing such a measure to get through the House. Most children who commit crimes are disadvantaged in some way, and should be given a second chance.
	While we are considering the Green Paper recently brought forward by the Government, Every Child Matters, which makes many good suggestions, we should bear in mind the need for a youth justice system that is entirely separate from that of adults. All the youth justice and children's organisations are calling for that. Those are the reasons why I will in due course move Amendment No. 126B.

Lord Lloyd of Berwick: My Lords, as I understand it, the purpose of the amendment proposed by the noble Baroness to insert the additional provisions at the end of Clause 96 is to clarify the meaning of that clause. I regret to have to say that, although they are obviously there with the best intentions, they do not get away from the fundamental defects in the clause that have been pointed out and developed by the noble Lords, Lord Kingsland and Lord Thomas. I am afraid that I shall be voting with them on the matter.

Baroness Scotland of Asthal: My Lords, I say straightaway to the noble Lord, Lord Thomas of Gresford, that I am very sorry indeed to have given him sleepless nights. I had hoped that I had delivered the antidote capable of providing a little balm to his troubled spirit in relation to the matter.
	I have responded to the substance of the comments made by the noble Lord, Lord Kingsland. He posed a number of questions. If I may respectfully say so, that is why, when I opened the debate, I went through with care the way in which we think that the clause will operate. There are three real points. The first is that the Government remain of the view that all relevant evidence should be admissible and capable of going before the jury. However, there should be safeguards which would prevent that relevant evidence going forward if the defendant can establish that it was not relevant; or that it was more prejudicial than probative; or that there was some other cause using the provisions which we have now added. Those safeguards would cause the evidence to be excluded on the basis that the judge would exercise his discretion that it was unjust so to do.
	We believe that the new safeguards that we have in place cure all the ills about which noble Lords opposite have complained. It is the most powerful antidote that we can provide and we believe that the solution suffices. However, I listened with great care to what both noble Lords said and I do not know whether after our discussions there may be further or other explanations I may be able to make from the Dispatch Box which may put these issues beyond doubt. I believe that they are beyond doubt already, but in your Lordships' House I have come to recognise that my assessment and the clarity and detail which your Lordships sometimes require do not always coincide. I believe that the Government have done enough on these issues and I commend the amendment to the House.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness for her courteous response. The difficulty I have with what she has just said, with the best of intentions, is that the difference between her observations about what the text says and the text itself is sufficiently large for me to think it appropriate to test the opinion of the House.

On Question, Whether the said amendment (No. 114B) shall be agreed to?
	Their Lordships divided: Contents, 190; Not-Contents, 112.

Resolved in the affirmative, and amendment agreed to accordingly.
	Motion, as amended, agreed to.

LORDS AMENDMENT

115Leave out Clause 90 The Commons disagree to this amendment but propose the following amendment to the words so restored to the Bill—
	115A Page 60, line 37, leave out from beginning to "evidence" in line 2 on page 61 and insert— "References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than"

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 115 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 115A to the words so restored to the Bill.
	Moved, That the House do not insist on its Amendment No. 115 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 115A to the words so restored to the Bill.—(Baroness Scotland of Asthal.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 115 and do agree with the Commons in their Amendment No. 115A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 115".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 115 and do agree with the Commons in their Amendment No. 115A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 115".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

116Leave out Clause 91 The Commons disagree to this amendment for the following reason—
	116A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 116 to which the Commons have disagreed for their reason numbered 116A.
	Moved, That the House do not insist on its Amendment No. 116 to which the Commons have disagreed for their reason numbered 116A.—(Baroness Scotland of Asthal.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 116 to which the Commons have disagreed for their reason numbered 116A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 116 to which the Commons have disagreed for their reason numbered 116A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

117Leave out Clause 92 The Commons disagree to this amendment for the following reason—
	117A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 117 to which the Commons have disagreed for their reason numbered 117A.
	Moved, That the House do not insist on its Amendment No. 117 to which the Commons have disagreed for their reason numbered 117A.—(Baroness Scotland of Asthal.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 117 to which the Commons have disagreed for their reason numbered 117A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 117 to which the Commons have disagreed for their reason numbered 117A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

118Leave out Clause 93 The Commons disagree to this amendment for the following reason—
	118A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 118 to which the Commons have disagreed for their reason numbered 118A, but do propose the following amendments to the words so restored to the Bill:
	118CPage 62, leave out lines 16 to 18
	118DPage 62, line 26, leave out "(d),"
	Moved, That the House do not insist on its Amendment No. 118 to which the Commons have disagreed for their reason numbered 118A but do propose Amendments Nos. 118C and 118D to the words so restored to the Bill.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion, leave out from "House" to end and insert "do insist on its Amendment No. 118.

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion, leave out from "House to end and insert "do insist on its Amendment No. 118.—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

119Leave out Clause 94 The Commons disagree to this amendment for the following reason—
	119A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 119 to which the Commons have disagreed for their reason numbered 119A.
	Moved, That the House do not insist on its Amendment No. 119 to which the Commons have disagreed for their reason numbered 119A.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 119 to which the Commons have disagreed for their reason numbered 119A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 119 to which the Commons have disagreed for their reason numbered 119A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

120Leave out Clause 95 The Commons disagree to this amendment for the following reason—
	120A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 120 to which the Commons have disagreed for their reason numbered 120A.
	Moved, That the House do not insist on its Amendment No. 120 to which the Commons have disagreed for their reason numbered 120A.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

LORDS AMENDMENT

121Leave out Clause 96 The Commons disagree to this amendment for the following reason—
	121A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 121 to which the Commons have disagreed for their reason numbered 121A, but do propose Amendment No. 121C to the words so restored to the Bill, and do propose Amendments Nos. 121D to 121F as amendments consequential on Amendment No. 121C:
	121CPage 63, line 19, at end insert— "(1A) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—
	(a) an offence of the same description as the one with which he is charged, or
	(b) an offence of the same category as the one with which he is charged. (1B) Subsection (1A) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.
	(1C) For the purposes of subsection (1A)—
	(a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;
	(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. (1D) A category prescribed by an order under subsection (1C)(b) must consist of offences of the same type."
	121DPage 171, line 30, leave out "95" and insert "96"
	121EPage 217, line 8, leave out "95" and insert "96"
	121FPage 217, line 9, leave out "(1)" and insert "(1C)"
	Moved, That the House do not insist on its Amendment No. 121 to which the Commons have disagreed for their reason numbered 121A, but do propose Amendment No. 121C to the words so restored to the Bill, and do propose Amendments Nos. 121D to 121F as amendments consequential on Amendment No. 121C.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion, leave out from "House" to end and insert "do insist on its Amendment No. 121".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion, leave out from "House" to end and insert "do insist on its Amendment No. 121".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

122Leave out Clause 97 The Commons disagree to this amendment for the following reason—
	122A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 122 to which the Commons have disagreed for their reason numbered 122A.
	Moved, That the House do not insist on its Amendment No. 122 to which the Commons have disagreed for their reason numbered 122A.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 122 to which the Commons have disagreed for their reason numbered 122A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 122 to which the Commons have disagreed for their reason numbered 122A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

123Leave out Clause 98 The Commons disagree to this amendment for the following reason—
	123A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 123 to which the Commons have disagreed for their reason numbered 123A.
	Moved, That the House do not insist on its Amendment No. 123 to which the Commons have disagreed for their reason numbered 123A.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 123 to which the Commons have disagreed for their reason numbered 123A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 123 to which the Commons have disagreed for their reason numbered 123A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

124Leave out Clause 99 The Commons disagree to this amendment but propose the following amendment to the words so restored to the Bill—
	124A Page 64, line 40, leave out from "a" to end of line 41 and insert "reprehensible way"

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 124 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 124A to the words so restored to the Bill.
	Moved, That the House do not insist on its Amendment No. 124 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 124A to the words so restored to the Bill.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 124 and do agree with the Commons in their Amendment No. 124A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 124".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 124 and do agree with the Commons in their Amendment No. 124A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 124".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

125Leave out Clause 100 The Commons disagree to this amendment for the following reason—
	125A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 125 to which the Commons have disagreed for their reason numbered 125A.
	Moved, That the House do not insist on its Amendment No. 125 to which the Commons have disagreed for their reason numbered 125A.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 125 to which the Commons have disagreed for their reason numbered 125A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 125 to which the Commons have disagreed for their reason numbered 125A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

126Leave out Clause 101 The Commons disagree to this amendment but propose the following amendment to the words so restored to the Bill—
	126A Page 65, line 47, at end insert— "(2) In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is admissible only if the court is satisfied that the interests of justice so require.
	(3) Subsection (2) applies in addition to section 93."

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 126 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 126A to the words so restored to the Bill.
	Moved, That the House do not insist on its Amendment No. 126 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 126A to the words so restored to the Bill.—(Lord Bassam of Brighton.)

Baroness Walmsley: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 126 and do agree with the Commons in their Amendment No. 126A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 126".

Baroness Walmsley: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 126 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 126A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 126".—(Baroness Walmsley.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

127Leave out Clause 102 The Commons disagree to this amendment for the following reason—
	127A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 127 to which the Commons have disagreed for their reason numbered 127A.
	Moved, That the House do not insist on its Amendment No. 127 to which the Commons have disagreed for their reason numbered 127A.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 127 to which the Commons have disagreed for their reason numbered 127A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 127 to which the Commons have disagreed for their reason numbered 127A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

128Leave out Clause 103 The Commons disagree to this amendment for the following reason—
	128A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 128 to which the Commons have disagreed for their reason numbered 128A.
	Moved, That the House do not insist on its Amendment No. 128 to which the Commons have disagreed for their reason numbered 128A.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 128 to which the Commons have disagreed for their reason numbered 128A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 128 to which the Commons have disagreed for their reason numbered 128A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

129Leave out Clause 104 The Commons disagree to this amendment but propose the following amendments to the words so restored to the Bill—
	129A Page 66, line 28, leave out "require a defendant" and insert ", and, where the party in question is the prosecution, must, contain provision requiring a party"
	129B Page 66, line 29, leave out "co-defendant's bad character under section 93(1)(f)" and insert "defendant's bad character"
	129C Page 66, line 33, leave out "co-defendant" and insert "defendant"
	129D Page 66, line 35, leave out "co-defendant" and insert "defendant"
	129E Page 66, line 39, leave out "defendant" and insert "party"

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 129 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 129A to 129E to the words so restored to the Bill.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 129 and do agree with the Commons in their Amendments Nos. 129A to 129E to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 129".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 129 and do agree with the Commons in their Amendments Nos. 129A to 129E to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 129".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

130Leave out Clause 105 The Commons disagree to this amendment but propose the following amendments to the words so restored to the Bill—
	130A Page 67, line 26, leave out from "means" to end of line 29 and insert "the commission of an offence or other reprehensible behaviour"
	130B Page 67, line 42, after "Chapter" insert "(except section 93(3)"
	130C Page 67, line 45, at end insert—
	"(a) under the rule in section 3 of the Criminal Procedure Act 1865 (c. 18) against a party impeaching the credit of his own witness by general evidence of bad character,"
	130D Page 67, line 47, after "(c. 23)" insert "(restriction on evidence or questions about complainant's sexual history)"

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 130 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 130A to 130D to the words so restored to the Bill.
	Moved, That the House do not insist on its Amendment No. 130 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 130A to 130D to the words so restored to the Bill.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 130 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 130A to 130D to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 130".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 130 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 130A to 130D to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 130".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

131Leave out Clause 106 The Commons disagree to this amendment for the following reason—
	131A Because they would result in a less satisfactory scheme for dealing with evidence of bad character.

Lord Bassam of Brighton: My Lords, I beg to move that the House do not insist on its Amendment No. 131 to which the Commons have disagreed for their reason numbered 131A.
	Moved, That the House do not insist on its Amendment No. 131 to which the Commons have disagreed for their reason numbered 131A.—(Lord Bassam of Brighton.)

Lord Kingsland: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 131 to which the Commons have disagreed for their reason numbered 131A, leave out "not".

Lord Kingsland: My Lords, I spoke to this amendment with Amendment No. 114. I beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 131 to which the Commons have disagreed for their reason numbered 131A, leave out "not".—(Lord Kingsland.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

LORDS AMENDMENT

132Leave out Clause 107 The Commons disagree to this amendment but propose the following amendment to the words so restored to the Bill—
	132A Page 68, line 15, leave out from "that" to second "the" in line 16 and insert "it is in"

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 132 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 132A to the words so restored to the Bill.
	The issue of hearsay evidence has been the subject of constructive discussion in the past few weeks, so I shall deal directly with the government amendment to Clause 107(1)(d), which has been agreed in the Commons as I believe that that will address concerns about the extent to which the courts should have a discretion to admit reliable statements.
	The Government remain firmly of the view that this discretion is an important aspect of the scheme. Certainly it was considered necessary by the Law Commission. But we have listened very carefully to the concerns that have been expressed that subsection (1)(d) was insufficiently focused. The proposed amendment would tighten the language used in the discretion to ensure that this evidence can be given only where it is in the interests of justice to do so. That would allow out of court cogent and reliable statements to be used, where the hearsay rule is obscuring or shielding the truth.
	Clause 107 represents a key part of the new coherent statutory scheme. It provides a clear context for the operation of the other provisions in this part of the Bill. We have responded to concerns about the exercise of discretion to ensure that it is operated only in appropriate circumstances. I beg to move.
	Moved, that the House do not insist on its Amendment No. 132 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 132A to the words so restored to the Bill.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

138 Page 89, line 3, at end insert— "(8) This section shall not come into effect before the national roll-out of the "custody plus order" under Sections 174 and 175."
	The Commons disagree to this amendment for the following reason—
	138A Because it may be desirable to increase the sentencing powers of magistrates' courts before the provisions about sentences of less than 12 months can be brought into force

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 138 to which the Commons have disagreed for their reason numbered 138A. I shall speak also to Amendments Nos. 139, 167, 173 and 235. Those provisions deal with the sentencing issue.
	As originally drafted, the Bill did not impose any restrictions on the timing of the increase in magistrates' sentencing powers. This allowed for a flexible approach to implementation. Amendments Nos. 138 and 139 would take away that flexibility by preventing the increase of magistrates' sentencing powers from coming into effect in advance of the custody plus provisions. The effect of that would be that the anticipated benefits of the increased magistrates' sentencing powers in terms of enabling them to retain more cases, thus saving time and money as well as benefiting victims and witnesses, could not be realised prior to the implementation of custody plus which we are aiming for as soon as possible.
	Turning to Lords Amendment No. 167, as originally drafted the Bill provided for the indeterminate sentence of public protection to be passed if the offender was convicted of a trigger offence carrying a maximum penalty of 10 years or more and the court was of the opinion that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.
	As we have stated in both Houses, the purpose of the test is to establish whether an offender is dangerous and in making this judgment the court must focus primarily upon the degree of the risk of harm that any future offending may pose. We do not think that the alternative test proposed by your Lordships diverts the attention of the court away from the central consideration—the harm that the offender may pose to the public. Both tests of course require a risk of reoffending to be present, but we think that the original test incorporates it in a way that better meets the interests of public safety.
	On Amendment No. 173, as originally drafted the Bill provided for the automatic release of non-dangerous offenders serving sentences of 12 months or more at the half-way point of their sentence. However, your Lordships decided that where this sentence was of four years or more, automatic release could not occur before the offender had served two-thirds of their sentence in prison. Following the introduction of the new sentences for dangerous offenders, there is no longer any public protection justification for retaining the differential release provisions that currently exist for custodial sentences of over and under four years. Amendment No. 173 would also undermine all the benefits that would accrue from the new simplified structure of custodial sentence of 12 months or more for non-dangerous offenders, such as making the sentencing framework more transparent, increasing public confidence, assisting post-release planning and providing longer supervision periods to reduce re-offending.
	Finally, Amendment No. 235 places a duty upon chief officers of each probation area to establish consultation arrangements with local magistrates' courts committees and local communities. We believe that that simply is not necessary. Although the Government agree with the sentiment of this amendment and acknowledge the importance of encouraging joint working, they do not believe that such a statutory duty is necessary in the light of arrangements that are already in place and those that are planned.
	The National Probation Directorate has recently agreed with the Magistrates' Association to establish a new national consultative group which will help to give magistrates and other sentencers a clear and strong voice in the development of policy and practice. Discussions are currently taking place with the Magistrates' Association and others about the details, including the terms of reference and wider membership of the group. These are expected to be resolved by the end of the year.
	Among the first issues to be addressed when the new group meets will be how these national arrangements might be reflected at a more local level and the continuing development of local and locally agreed communication strategies to complement those at a national level. For these reasons, I beg to move that the House do not insist on the amendment.
	Moved, That the House do not insist on its Amendment Nos. 138 to which the Commons have disagreed for their reason numbered 138A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

139 Clause 147, page 89, line 10, at end insert— "(5) This section shall not come into effect before the national roll-out of the "custody plus order" under sections 174 and 175."
	The Commons disagree to this Amendment for the following Reason—
	139A Because it is consequential on Lords Amendment No. 138 to which the Commons have disagreed.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment Nos. 139 to which the Commons have disagreed for their reason numbered 139A.
	Moved, That the House do not insist on its Amendment No. 139 to which the Commons have disagreed for their reason numbered 139A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

167 Clause 216, page 127, line 7, leave out from "a" to end of line 9 and insert "substantial risk of his committing further specified offences involving a significant risk of serious harm to members of the public" The Commons disagree to this amendment for the following reason—
	167A Because the test originally proposed is preferable.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 167 to which the Commons have disagreed for their reason numbered 167A.
	Moved, That the House do not insist on its Amendment No. 167 to which the Commons have disagreed for their reason numbered 167A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

173 Clause 235, page 136, line 39, at end insert "(where that sentence is less than four years), or two-thirds of his sentence (in any other case)" The Commons disagree to this amendment for the following reason—
	173A Because it is appropriate for prisoners serving sentences of four years or more to be released on licence at the half-way point in cases where the provisions for dangerous offenders do not apply.

Baroness Scotland of Asthal: I beg to move that the House do not insist on its Amendment No. 173 to which the Commons have disagreed for their reason numbered 173A.
	Moved, That the House do not insist on its Amendment No. 173 to which the Commons have disagreed for their reason numbered 173A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

203 Clause 254, page 147, line 29, at end insert— "( ) This section does not apply if the offender was under 18 when he committed the offence."
	The Commons disagree to this amendment but propose the following amendments in lieu thereof—
	203A Page 266, line 11, leave out "In a case not falling" and insert "If the offender was aged 18 or over when he committed the offence and the case does not fall"
	203B Page 266, line 12, at end insert—
	"6A If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term, is 12 years."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 203 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 203A and 203B in lieu thereof.
	This group of amendments refers to issues regarding juveniles. To allay the concerns which have been expressed about juvenile tariffs we propose to reintroduce juveniles into the system, but we will specifically set in the statute a lower starting point for them, to recognise the special needs of the age group. The juvenile starting point will be 12 years, which reflects recent guidance given by the Lord Chief Justice.
	As I said previously, the starting point for tariffs under the schedule are not a minimum sentence. Age is still specified as a mitigating factor within these principles and courts will have the discretion to reduce from the starting point to arrive at sentences appropriate to the youth or maturity of younger juvenile offenders.
	I know that the noble Earl, Lord Listowel, whom I see is in his place, has been particularly concerned about this matter and has asked whether the Government expect the starting point of 12 years to be applied as it is currently. I refer to the Lord Chief Justice's direction that courts should as a rule of thumb reduce the starting point by one year for each year that the juvenile is below the age of majority.
	Of course it would be inappropriate for me to limit the discretion of the courts by expecting such a mechanistic determination. The statute maintains the age of the offender as a mitigating factor which the courts may take into account above and beyond the fact that there is already a lower starting point for juveniles. That will enable the courts to move from the starting point as appropriate to set a tariff that is just in all the circumstances.
	We should not forget that juvenile cases are individual. A 14 year-old may be immature, or a 17 year-old mature, so wide flexibility is vital. My right honourable friend made the point that the year-on-year reduction could be regarded as too inflexible in corresponding with the Lord Chief Justice on the practice direction of which we speak.
	We hope though that the latitude for the exercise of discretion that we have here in outline will be more than sufficient for the judges who deal with these very complex and difficult cases to exercise appropriate discretion in differentiating between children of differing ages, backgrounds and circumstances particularly referable to the nature of the offence. With that, I hope that noble Lords will not insist on their Amendments Nos. 203 and 431, but do agree Amendments Nos. 230A and 203B in lieu of Amendment No. 203. I beg to move.
	Moved, that this House do not insist on its Amendment No. 203 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 203A and 203B in lieu thereof.—(Baroness Scotland of Asthal.)

Baroness Anelay of St Johns: My Lords, I rise briefly on this important matter. I thank the noble Baroness for giving such a full and careful explanation of the reasons why the Government felt that they could not go further than the arrangement they have achieved by their amendments in lieu today.
	I make it clear that we had always understood that there would be discretion in sentencing. Our amendments in no way impinged upon mandatory life sentences. Certainly, I welcome the fact that the Government have thought again on these matters. Noble Lords who voted to remove this provision are somewhat disappointed in a sense that we have gone from 15 to 12. That disappointment must be tempered as the noble Baroness explained, by the fact that the Government have lighted upon the Lord Chief Justice's guideline. I remarked to him this week that on that basis I certainly would not seek to resist the Government in their amendments in lieu. Therefore, I did not table a Motion today.
	However, prior to today's debate, I had contact with the Children's Society. It wishes to make it clear that it is disappointed but perfectly understands that it would not be appropriate to press the matter now. We are all aware that there may be a proper time to debate the matter further with the Minister and on the Floor of the House when we reach a review of the youth justice system.

On Question, Motion agreed to.

LORDS AMENDMENT

235 After Clause 283, Insert the following new Clause— "Duty of probation officers to consult with magistrates
	It shall be the duty of the chief officer of each probation area—
	(a) to establish consultation arrangements with local magistrates' courts committees and local communities,
	(b) to assist the probation service in the performance of its duties of reducing offending, and
	(c) to supervise offenders in the community." The Commons disagree to this amendment for the following reason—
	235A Because it is unnecessary to impose the duty referred to.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 235 to which the Commons have disagreed for their reason numbered 235A.
	I have spoken to the amendment with Amendment No. 138.
	Moved, that the House do not insist on its Amendment No. 235 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 235A in lieu thereof.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

LORDS AMENDMENT

431 Schedule 26, page 316, line 39, leave out sub-paragraph (2) The Commons disagree to this amendment for the following reason—
	431A Because it is consequential on Lords Amendment No. 203 to which the Commons have disagreed.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 431 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 431A.
	I have spoken to this amendment with Amendments Nos. 138 and 203.
	Moved, That the House do not insist on its Amendment No. 431 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 431A.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

Health and Social Care (Community Health and Standards) Bill

A message was brought from the Commons, That they agree to certain amendments made by your Lordships without amendment; they agree to certain other amendments with amendments to which they desire the agreement of your Lordships; they disagree to certain other amendments but have made amendments to the words so restored to the Bill to which they desire the agreement of your Lordships; and they disagree to the remaining amendments for which they assign reasons.

Lord Davies of Oldham: My Lords, consideration of the Commons message will be taken as agreed at 9.45 p.m. Therefore, I beg to move that the House be adjourned during pleasure until 9.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 6.48 until 9.45 p.m.]

Lord Warner: My Lords, I beg to move that the Commons amendments and reasons be now considered.
	Moved, that the Commons amendments and reasons be now considered.—(Lord Warner.)

On Question, Motion agreed to.

COMMONS REASONS FOR DISAGREEING TO CERTAIN LORDS AMENDMENTS, COMMONS DISAGREEMENT TO CERTAIN LORDS AMENDMENTS AND COMMONS AMENDMENTS TO WORDS SO RESTORED TO THE BILL, AND COMMONS AMENDMENTS TO CERTAIN LORDS AMENDMENTS.

[The page and line references are to HL Bill 94 as first printed for the Lords.]

LORDS AMENDMENT

1 Clause 1, Leave out Clause 1 The Commons disagree to this Amendment for the following reason—
	1A Because it is necessary to provide for the constitution of NHS foundation trusts.

Lord Warner: My Lords, I beg to move that the House do not insist on its Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.
	I do not intend to go over the whole case for NHS foundation trusts, other than to reiterate two key points. First, foundation trusts are totally consistent with the founding values of the NHS. They are an integral part of it, and there is absolutely no evidence that they will damage local health economies. Secondly, the governance arrangements involve patients, the public and staff in their local hospitals in a way that has never been achieved before. The argument that nobody supports foundation trusts does not stand up. When people know the advantages, they come forward and want foundation trust status.
	As I said in Committee, 25 NHS trusts are consulting on proposals to apply for NHS foundation trust status from next April and a further 30 or so have applied to be considered for coming on-stream in autumn 2004. If all those applications were successful, some 25 per cent of the population in England would have access to NHS foundation trusts by the end of 2004. By their irresponsible actions, the two Opposition Benches have sought to wreck the Bill and thwart those local people from securing the local freedoms that they want.

Noble Lords: Oh!

Lord Warner: Noble Lords should hear the rest of it. I acknowledge that there was scope for improving the original Bill. That is why the Government have proposed or accepted more than 200 amendments, 90 of them relating to NHS foundation trusts. That is clear evidence that we have listened and responded to concerns.
	This House has discharged its scrutiny and review functions. It has asked the other place to think again, and it has done so. It has rejected clearly this House's removal of Clause 1 and Schedule 1, by 303 votes to 286. In that vote, 80 per cent of Labour MPs voted in favour of foundation trusts—with 19 extra converts since the previous vote on the issue. With two votes, at least, by the Commons on the issue, it is the clear will of the Commons, the elected House, to have Clause 1 and Schedule 1 as amended restored to the Bill. I do not think that it is for this House to resist restoration.
	Even at this late stage of the proceedings, my right honourable friend the Secretary of State has shown how much he has listened to the concerns expressed that we need to be in a position to learn from the experience of the first NHS foundation trusts before the rest of the NHS applies for that status. That is why he made it clear earlier in the other place that he was prepared to review how we proceed in the light of our experience and to learn the lessons from the early NHS foundation trusts that start up in 2004.
	As he said then, there will be an opportunity to do that in the 12-month period before the end of the first wave of foundation trusts in autumn 2004 and autumn 2005. That is why my right honourable friend told the other place that he would ask the Commission for Healthcare Audit and Inspection—which will, of course, be accountable to Parliament, not him, under the Bill—to insist on that review. During the period of that review, the Secretary of State would not pass any new applications for a new NHS foundation trust to the independent regulator.
	The Benches opposite have been calling for an independent review; and here is my right honourable friend offering it—an independent review at that. It will be able to consider the governance issues by which they are still troubled; it will be able to consider the relationship between NHS foundation trusts and others in the local health economy. It will be in the hands of CHAI. The report goes to Parliament, which will of course be able to debate it. What more do noble Lords have to quibble over? I urge the House to agree with the Commons reinstatement of Clause 1 and Schedule 1 as amended.
	Before I finish, I should make absolutely clear that no matter how how many times this Bill goes back to the Commons, it will come back with Clause 1 and Schedule 1 reinstated. If that means that this House's action means that the Bill is lost, that will be a consequence of this particular House's action. I want to make absolutely clear that that is the Government's position; it will be in the public arena shortly. I beg to move.
	Moved, That the House do not insist on its Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.—(Lord Warner.)

Earl Howe: rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 1 to which the Commons have disagreed for their reason numbered Amendment 1A, leave out "not".

Earl Howe: My Lords, today's vote in the House of Commons means that this House must once again make a decision about Part 1. It is an important decision for the health service as a whole and for its patients, and I have thought hard about what it is best for us to do. First, we must recognise that, having been asked by your Lordships to think again on foundation trusts, the elected House has reached a decision and has approved the Government's policy for a second time.
	However slim the Government's majority in the other place—it was extremely slim—we should not lightly dismiss that result. Our second task is to consider the issue. Nothing has changed since the House debated it on Report the week before last. The Government have made no substantive concessions to address the two main concerns voiced by noble Lords about foundation trusts—the dangers posed for the wider NHS by the creation of an elite tier of hospitals and the threat to effective and good governance of foundation trusts stemming from the Bill's confused and cumbersome governance provisions.
	Nothing has changed on those two fronts—and my mind has certainly not changed. What has changed is the majority in the other place. I do not see how this House can fail to give weight to the fact that a Government with an overall majority of 164 was reduced to a majority of a mere 17 in the vote earlier this evening. That was not simply a majority of only 17; that was a majority achieved only by virtue of the votes of 44 Scottish Labour Members whose constituents have no direct interest in the matter at issue, and whose own health service, being devolved, is one over which the Westminster Parliament has no say.
	Those Members of course have a perfect legal right to troop through the Lobby in support of the Government, but the outcome of the vote and its significance for this House is, I suggest, devalued because of the part that they played in it. There is a real sense in which we can say that the House of Commons has not spoken on behalf of the man and woman in the street. I do not know how many noble Lords heard the comments of Mr Frank Field, who said that if the House of Commons had been given a free vote this afternoon, the Government would have lost by at least 50.
	Whether we agree with that precise number or not is irrelevant. The point is that the Government did not succeed in winning today's vote by persuasion or on the strength of the argument. They won it by twisting the arms of their own supporters and flying a Minister back from Australia. In contrast, it is sometimes said that this House—the unelected House—is better able to reflect the public mind than the other place. I happen to think that we can say that with confidence on the issue of foundation trusts. It is not only Members of the House of Lords who are opposed to the Government, but the BMA, the unions and, indeed, the vast bulk of the general public.
	Yesterday, NOP published a poll in which only 4 per cent of respondents said that their top priority was to have their local hospital run by a foundation trust. In contrast, 83 per cent favoured a well run local hospital with shorter waiting times and 84 per cent of people wanted public money aimed at improving all NHS hospitals. Only 7 per cent believed that more money should be given to the hospitals that are currently doing well.
	The Government will no doubt wave those results away, but they reflect the anxieties and opinions of real people. That public feeling and the views of those working in the health service were very powerful reasons why this House was justified in returning Clause 1 and Schedule 1 to the Commons two weeks ago. The provisions in the Bill on public consultation have been strengthened, I am glad to say. However, it is a matter of great concern that those patients and members of the public who are served by the first wave of applicant trusts will have been given no say whatever in the decision to apply for foundation status. If we had wanted proof of the Government's stated desire to involve local people in decision making on health, it would have been found in a genuine consultation exercise on the question, "Foundation status—yes or no?" That was one question that was never asked.
	On an earlier occasion, I said that I was genuinely sorry to find myself opposing devolution in the NHS, and I am. However, when the detail of that devolution policy poses such dangers for the health service, I am in no doubt that opposition is necessary. I do not ask the Government to take the proposals away and never bring them back. I ask only that they take them away, refashion them in a manner that addresses the genuine concerns expressed in this House by noble Lords and by Members of another place and bring back their revised ideas in the next Session of Parliament.
	To noble Lords who asked why we should resist these proposals the second time, I say this: I do not want to find that, in two or three years' time, the people in my village who are sent for treatment at a local hospital discover that that hospital is less well equipped than the foundation hospital 40 miles away, because it has been unable to invest on the scale that it needs to do because the foundation trust enjoyed easier, privileged access to capital funding. Nor do I wish to find that the foundation hospital serving my 82 year-old father-in-law has decided to skew resources away from services for the elderly, from dedicated stroke units and chronic pain management because its board of governors is working to an agenda dictated by a local and vocal minority of members.
	By definition, it is the dispossessed and socially excluded who will lose out in that model of governance. I want no part of such an ill thought out system. This House is well within its rights to reject Clause 1 for a second time. I believe that it has a duty to do so for the sake of the NHS and all those who use it. I therefore beg to move.
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 1 to which the Commons have disagreed for their Reason 1A, leave out "not".—(Earl Howe.)

Lord Clement-Jones: My Lords, I support Amendment No. 1B, and I shall speak to Amendment No. 161CC.
	Many of us heard a powerful debate in the other place, whether we were present in the Gallery or saw it on television. It was impressive to see many Labour MPs take a principled stand on the issue. The fact that, despite the concessions, the Government achieved half the majority that they had on an earlier occasion demonstrated that the Government's arguments are becoming thinner by the hour. The speech made by the noble Lord, Lord Warner, today was characteristic of that: it was short, to the point and entirely devoid of reasoned argument.
	I heard the Secretary of State on the radio this morning and also in the House. His understanding of history seemed to be completely flawed, and I felt like sending him a reading list. He should brush up on the history of the NHS: William Beveridge was a Liberal and one of the architects of the NHS. Instead of that, we heard that we were tearing down the NHS and that those of us on these Benches were partly responsible, along with all sorts of other villains and miscreants. That is a very partial view of history.
	My honourable friend Paul Burstow made it clear during the debate today that Liberal Democrats had no argument with devolution in the NHS. We too wish to see NHS hospitals freed from micro-management and inappropriate targets. However, foundation trusts, in their present form, are not the instrument for that. They were not in the Government's manifesto at the previous election, and they were not in the NHS Plan. There was no consultation on the new system, yet Ministers have been cooking up the proposals and inviting applications since the beginning of last year. The method of selection, via the star rating system, is arbitrary, with the Secretary of State making the final decision.
	Local consultation has also been flawed. Whole London boroughs have been excluded from consultation and from the governance arrangements proposed for applicant foundation hospitals. Much of the consultation has assumed the form of a fait accompli. The coverage of foundation trusts will be partial and potentially competitive, yet foundation trusts can and may have a profound effect on the balance of the local health economy and the services that local people need. It is hardly surprising that cancer networks, for example, are fearful of the future. The powers of the regulator are not spelt out and take insufficient heed of that fact.
	As I said on Report, the key issue, ultimately, is whether there will be any resulting benefit for patients. The well respected Health Select Committee rightly asked whether such competition between hospitals would benefit patients. The poll referred to by the noble Earl, Lord Howe, demonstrated the ignorance of the public about foundation trusts. Those who know what foundation trusts mean are against them. The doctors, nurses and other staff in the NHS are deeply sceptical about the proposals.
	As my honourable friend said, in so far as foundation trusts secure freedom to act, it is hard to see how that freedom will not disadvantage the hospitals that are left behind. The rules for borrowing are a key example. Foundation trusts will have an advantage over other NHS trusts; they will have easier access to capital. The Treasury has ensured that there will be a zero-sum game, as we have pointed out relentlessly through the passage of the Bill. The NHS capital pot is fixed in size. If foundation trusts can dip into that pot more easily, it will be at the expense of the rest of the NHS.
	My honourable friend also pointed out the short-term nature of the requirement for foundation trusts to adhere to Agenda for Change. There is nothing in the Bill to prevent foundation trusts, over time, varying their pay and conditions, in order to be better placed to expand. Foundation trusts will soon be able to compete on pay and conditions, at the expense of patients treated anywhere else in the NHS. So much for the assurances that the Minister gave about the duty of co-operation with other parts of the NHS that foundation trusts will have.
	Our amendment deals, in particular, with the governance arrangements set out in Schedule 1. Schedule 1 amounts to the ramshackle and expensive construction of sham democracy, with self-selected members, powerless governing bodies and massively expensive servicing requirements. My honourable friend who, most unusually, reads Hansard for this House, noted that the most powerful speeches in regard to foundation hospitals and governance were those of the noble Lords, Lord Lipsey and Lord Harris.
	Finally, as Members on these Benches pointed out on Report, foundation trusts start at the wrong point. It is in commissioning where we need to give local control: to those who commission healthcare and who need to be responsive to local needs. The commissioners—the primary care trusts—should be democratically accountable. That is what Members on these Benches in both Houses have argued for. It remains a mystery why the Government did not accept that from the outset. Instead, new governance arrangements simply re-emphasise the dominance of acute hospitals at the expense of primary care, preventive health strategies designed to improve public health and reduce health inequalities, along with the integration of health and social care.
	The Government have retreated to a great extent on this Bill. Now we have last-minute concessions that amend the Bill so that it will affect a shrinking number of applicants, now down to some 50 or so. The Government should make this retreat complete and drop Part 1. If the Bill as a whole is lost, then let us be quite clear: this has been an accident waiting to happen right from the outset—as a result of the Government's own actions, which are entirely self-inflicted. The Government should accept the verdict of this House and of NHS staff.

Lord Hunt of Kings Heath: My Lords, I hope that the House will support my noble friend and reject the Motion proposed by the noble Earl, Lord Howe. We have debated the issue of foundation trusts through the many stages of this Bill. Although noble Lords have expressed some concerns and issues have been raised at each stage, the fact is that this House has asked the other place to think again, the other place has done so and, by a majority of 17 votes, it has decided to support the implementation of the policy to introduce foundation trusts.
	Surely the role of this House, as a revising Chamber, has now been fulfilled. It has asked the House of Commons to think again, which it has done. We could argue about the size of the majority, but a majority is a majority and, for me, a majority vote of 17 is sufficient for the decision to have been made.
	The role of this House is to question, to challenge and to revise. Were any objective commentator to look at the process of this Bill, he would conclude that the Government have listened. My noble friend has accepted a number of amendments proposed by myself and other noble Lords. In fact, a considerable number of amendments have been voted on and accepted by the Government.
	Today, the Government have accepted a suggestion that the first wave of foundation trusts should go forward and then should be subject to review by an independent body before other NHS trusts are allowed to become foundation trusts. What could be fairer than that in terms of listening to, thinking about and accepting the views and concerns of noble Lords in this House? The Government have said that they will review the position. They will ask an independent body to look at what progress has been made before any further NHS trusts can become foundation trusts. Is not that the purpose of this House? Noble Lords have asked the Government to look again at their proposals and the Government have done so. They have modified their plans to accommodate a review of how the first tranche of foundation trusts goes forward before others are allowed to follow. On what possible basis can this House now say that it will reject the views of the elected Chamber?
	What is the purpose of the creation of foundation trusts? Surely it is this: it is to ensure that, over the next few years, the NHS is governed and run in the most effective way possible. After the way in which the NHS has so far been run—through micro-management, central diktat and a central accountability to Parliament which inhibits and gets in the way of innovation and local implementation of national policies—does anyone suggest that we ought not to move on to a more devolved system of administration? That is what foundation trusts will do. Surely we should put our trust in local people to elect their fellow citizens to take part in the governance of the NHS in the future. That is what foundation trusts will do.
	The Government have listened. They have revised their proposals and, ultimately, the other place has decided, through a democratic vote, the way in which it wishes to go. For the sake of the NHS, surely we should now allow these measures to go through.

Baroness Finlay of Llandaff: My Lords, at this late stage of the Bill I hesitate to return to the core issue, but I should like to do so. The devolved administrations of Wales and Scotland do not wish to head towards foundation trust status and yet people in central administration in those bodies are extremely close to the populations they serve. That is not in any way to swipe at Parliament as it stands, but it is worth noting.
	It is also worth noting that the BMA wrote to MPs prior to the vote today and reiterated its arguments. It has been following closely the debates in this House and there is concern in the profession that this marks a return to the internal market of the early 1990s and that the establishment of foundation trusts will prove divisive and exacerbate the inequalities in the NHS—and no one denies that there are inequalities in the NHS.
	The encouragement of competition could fly in the face of the fantastically good work that has been done with the establishment of collaborative clinical networks, particularly the cancer networks, that have been driving up improvements in clinical care.
	Not all hospitals are of an equally high standard and we should aim to level up standards of care. There is a real concern that those in the first wave will have an advantage. What will happen if foundation trusts concentrate on the areas of service provision that are profitable and easy to manage, as seen within the private sector? Prior to coming into the Chamber today, I phoned a consultant in ITU to check that I had my facts right. Patients eligible for NHS treatment but treated in private hospitals are indeed transferred to NHS ITUs when resources are not available in the private sector. That is because the NHS as it stands is able to provide comprehensive care for the very sickest people in our population. But it is not profitable care and I cannot see how a foundation trust will want to indulge in the most unprofitable parts of care provision, particularly with the targets set as they are at present.
	The primary care trusts' commissioning powers could potentially be undercut by these new providers within the hinterland of their governing body. I listened to the debate in another place and the Minister did indeed refer to a review after the first year. But, of the questions that were posed, two were not answered. First, what happens if these foundation trusts are failing? Will they revert to the NHS as they were before? The second question that was not answered was whether the review would address the impact of a foundation trust on the total health economy of the population being served. Unless a review addresses that, we will simply be putting blinkers on those conducting it regarding the way in which a total health economy could be affected by these changes.
	It has been said that there is no evidence that foundation trusts will damage local health economies, but is there any evidence that they will improve care and the local health economies? I have pleaded on many occasions for evidence-based management in the NHS, and I make that plea again. We are looking at an idea driven by any political mantra that one might choose. I speak as a Cross-Bencher and not a party member, but I work in the NHS and I find myself in a bizarre position because of that. I see the burgeoning pressures on the service as it is now, the imbalance between capacity and demand. How do we put the patients' needs back at the heart of all aspects of healthcare?
	Currently, the priority seems subtly and inexorably to have shifted from the patient to the paperwork and the management response to targets. I am not sure whether evidence as such—scientifically evaluated evidence—is really driving this debate or whether it is political ideas and headlines.
	Perhaps the whole NHS needs a very simple message, and it may be completely obvious. First, every healthcare professional at every level should make sure that the patient is comfortable in body, mind and spirit, however that needs to be done. Secondly, they should ensure that the relatives are calm and understand what is happening. Thirdly—and this should be done only after the first two tasks have been completed—they should fill out the paperwork and see whether the management targets have been met. Perhaps we could prioritise patients again by going over to a mantra of "123", rather like "ABC" for resuscitation. I am not convinced that management changes at the top will achieve that.
	The way in which the patient is made comfortable must be evidence-based. Similarly, management changes must be evidence-based. I ask the House to look at whether there really is evidence that these management changes will bring about the outcomes that are hoped for in the Bill.
	I do not want to comment on the way in which votes have been cast in one way or another. It feels uncomfortable to be speaking with a time limit of the end of this Session of Parliament. I sincerely believe that if we had had more time to look through these proposals, more might have been achieved.

Lord Phillips of Sudbury: My Lords, I should like to take up one point made by the noble Lord, Lord Hunt of Kings Heath, whose views on these matters the House respects greatly. He rested his case on the need for greater devolution in respect of hospitals. I think he would accept that these Benches need no lessons on the virtues of devolution. It is an article of faith for us that government has been far too centrally administered by this and previous Administrations, and that the more devolution we have, broadly speaking, the better for this country. The issue, however, as was well stated by my noble friend Lord Clement-Jones, is whether the means and extent of devolution which these proposals would entail might be discriminatory and unequal in their impact.
	If we are to have devolution—and, in principle, these Benches are wholly in favour of it—let us have devolution for all. Let us avoid some of the discriminatory effects that will flow from the Government's proposals and the bureaucratic and governmental flaws that we believe are part of the proposed system.

Baroness Noakes: My Lords, my noble friend Lord Howe has already eloquently set out the views of these Benches on why we continue to believe that the foundation hospital proposals are misguided in this Bill and why they are harmful to the NHS overall. We are quite used to the Minister not listening to the views of these Benches—

Lord Davies of Oldham: My Lords, the noble Earl has the right to sum up on his amendment and wind up the debate, and this is a further contribution from the Opposition Front Bench.

Baroness Noakes: Yes, my Lords, it is indeed—it is a further contribution from the Front Bench. We believe that these matters to be so important that we should outline why we believe that the Bill should be sent back to another place.
	I was about to say that we expect the Minister not to take account of those on these Benches. However, I am surprised that the well expressed views of the noble Baroness, Lady Finlay—who represents the views of so many in the clinical professions involved in the NHS—have not been listened to. We believe there to be very serious flaws in the concept of foundation trusts, and it is because of that that we oppose the Bill and believe that it should be sent back to another place and considered again.
	I shall cover some areas that we believe to be particularly important, to show why we believe the concept to be so flawed. Noble Lords opposite may not want to listen, but we believe it to be important that the other place hears why we do not believe that the Bill should pass and that we believe that it has flaws that should be addressed.
	I should like to address first the issue of how the finances will work. When the idea of foundation trusts was first launched, it was supposed to give flexibility to NHS trusts, to give them more access to finance. In practice, those freedoms have not been available. NHS trusts seriously wanted those freedoms because they are shackled by the double whammy of Department of Health bureaucracy and the financial constraints of the Treasury. They had no real freedoms, and they were desperate for freedoms so that they could start to borrow to develop their own delivery of healthcare for their local areas.
	The idea of foundation trusts sounded almost too good to be true—and of course it was too good to be true, because the Chancellor of the Exchequer invented the zero-sum games to which the noble Lord, Lord Clement-Jones, referred. The zero-sum game means that for every pound that NHS foundation trusts borrow, the money available to the rest of the NHS will be reduced. The Chancellor will in effect be pulling the strings of the NHS in all ways, including all foundation trusts.
	We believed that foundation trusts would be able to access new sources of finance in the commercial sector, but that, too, is an illusion. We learned only yesterday about the fact that they will be fully borrowed, with virtually no capacity to borrow extra from the private sector.
	There is a sketchy borrowing code in the Bill, and borrowing limits that seem not to have any meaning whatever. Others have already touched on governance structures, which are deeply flawed, and do not make clear the respective roles of the board of governors and board of directors.
	There are other issues in the Bill that are simply not worked out properly. The Minister constantly told us about flexibility, but flexibility really means that the Government do not know the answers. For those reasons—that they have not delivered on financial freedoms, that the government structures are weak and ill thought-out, and because there is so much detail lacking—we believe that the Bill should be sent back to the other place.

Lord Warner: My Lords, I was not intending to speak again but, having listened to some of the contributions from the Benches opposite, I cannot resist it.
	The debate is taking place as though we had not spent nine days considering the Bill, and as though there had not been 200 amendments that the Government have moved or accepted, 90 of which were on foundation trusts. Those on the Opposition Front Bench seem to operate on the basis that they can rake up all the things that they have discussed over those nine days. They have not moved amendments on them; if they are so keen to get the Bill right, why have they not moved amendments on those matters and carried them through the House? We have actually accepted a lot of the things that they have moved, and they have withdrawn their amendments, but they continue to talk about those things as though the Government had not listened. They simply have not had the nerve to move those amendments and to put them to a vote if that is what they wanted to do.
	We have had the same old story from the noble Baroness, Lady Noakes, about the zero-sum game. The Benches opposite simply do not accept the billion pounds more that have been put into the NHS in both capital and revenue. There was a zero-sum game under the administration of the Benches opposite, when people did have to queue for money. However, we are talking about a hugely enlarged pot. It has always been the case that, ultimately, both under their administration and under this Government, the pot is finite. However, this is a much bigger pot in which everyone in the NHS is sharing.
	We had the dreary old story of the Scottish MPs. As I understand our constitution, all MPs in the House of Commons are equal. Perhaps the Conservative Front Bench is a bit short of Scottish MPs and that is part of its problem. We also had the same old story from the Liberal Democrats about the first foundation trust applicants being chosen on the basis of star ratings. That is simply not true. If noble Lords go back to Hansard they will see that I have said that that is not true. The Secretary of State will judge those applications on a much wider basis.
	I could go on, but the brute fact is that the House of Commons has voted to reinstate Clause 1 and Schedule 1. The Benches opposite do not like it because there was a clear majority. They did their best to ensure that that majority was not sufficient. However, it is a clear majority. It is the will of the House of Commons that Clause 1 and Schedule 1 should be restored to the Bill. I urge noble Lords to let the will of the Commons prevail in this area, to reject Amendment No. 1B and not to insist on Amendment No. 1.

Earl Howe: My Lords, I want to be fair to the Government this evening. The Minister conveyed the Secretary of State's offer to conduct a review of the Government's arrangements after a period of time; that offer is certainly not to be dismissed and I do not dismiss it. I understand the offer to me that the review would precede the approval of further applications for foundation status. If that is right, then I think we ought to recognise the downside of the offer. It will serve to entrench the two-tier system for even longer than will currently be the case. If only the Government had taken the trouble to listen to people before embarking on this policy, if only they had taken their time to get the detail of it right, we would not be having this debate this evening.
	Nothing the Minister has said persuades me that this House is wrong in opposing once again these deeply flawed proposals. That is why I now ask the House to accept my amendment.

On Question, Whether the said amendment (No. 1B) shall be agreed to?
	Their Lordships divided: Contents, 169; Not-Contents, 101.

Resolved in the affirmative, and amendment agreed to accordingly.

LORDS AMENDMENT

4 Clause 3, Leave out Clause 3 and insert the following new Clause— "General duty of the regulator
	The regulator must exercise its functions in a manner that—
	(a) is consistent with the performance by the Secretary of State of the duties under sections 1, 3 and 51 of the National Health Service Act 1977 (c. 49) (duty as to health service and services generally and as to university clinical teaching and research), and
	(b) has regard to the impact of an NHS foundation trust on the local health economy." The Commons disagree to this Amendment but propose the following Amendment to the words so restored to the Bill—
	4A Page 2, line 3, leave out "his" and insert "its"

Lord Warner: My Lords, I beg to move that the House do not insist on its Amendment No. 4 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 4A to the words so restored to the Bill.
	I want to make a speech of a couple of sentences and read out the vote on the amendment in the Commons. Three hundred and forty-six Members of the other place voted to restore the changes, with 242 against. If that is not the will of the Commons being very clearly expressed, I do not know what is.
	Moved, That the House do not insist on its Amendment No. 4 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 4A to the words so restored to the Bill.—(Lord Warner.)

Lord Clement-Jones: had given notice of his intention to move, as an amendment to the Motion that the House do not insist on its Amendment No. 4 and do agree with the Commons in their Amendment No. 4A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 4".

Lord Clement-Jones: My Lords, the only reason for my rising is so that the Minister does not win the moral argument. The vote may have been as it was in the Commons after all the excitement of votes on Clause 1 and Schedule 1. However, there remains a concern about the impact of foundation trusts on the local health economy and that is precisely why the Government achieved the low majority in the other place. It is also why this House remains concerned and why the previous vote went the way that it did. However, in these circumstances, I shall not move my amendment.

[Amendment No. 4B not moved.]
	On Question, Motion agreed to.

LORDS AMENDMENT

5 After Clause 3, insert the following new clause— "Appeals
	The Secretary of State may provide in regulations that decisions of the regulator are to be subject to specified appeal or review mechanisms."
	The Commons disagree to this amendment for the following reason—
	5A Because it is not necessary to have special mechanisms for appeals against or reviews of the regulator's decisions.

Lord Warner: My Lords, I beg to move that the House do not insist in its Amendment No. 5, to which the Commons have disagreed for their reason numbered 5A. I have spoken to these amendments already. I beg to move.
	Moved, That the House do not insist in its Amendment No. 5, to which the Commons have disagreed for their reason numbered 5A.—(Lord Warner.)

On Question, Motion agreed to.

LORDS AMENDMENT

26 Clause 12, page 5, line 33, at end insert— "( ) In making the code the regulator shall ensure that the economic effect of all commitments to make payments over periods exceeding one year is taken into account."
	The Commons disagree to this amendment for the following reason—
	26A Because the provision is not necessary for a borrowing code.

Lord Warner: My Lords, I have spoken to this amendment with Amendment No. 5. I beg to move.
	Moved, That the House do not insist on its Amendment No. 26, to which the Commons have disagreed for their reason numbered 26A.—(Lord Warner.)

On Question, Motion agreed to.

LORDS AMENDMENT

28 Clause 15, page 7, line 27, leave out subsections (2) and (3) The Commons disagree to this amendment for the following reason—
	28A Because the regulator should be required to place restrictions on private health care.

Lord Warner: My Lords, I beg to moved that the House do not insist on its Amendment No. 28 to which the Commons have disagreed for their reason numbered 28A.
	Moved, That the House do not insist on its Amendment No. 28 to which the Commons have disagreed for their reason numbered 28A.—(Lord Warner.)

Earl Howe: had given notice of his intention to move, as an amendment to the Motion that the House do not insist on its Amendment No. 28 to which the Commons have disagreed for their Amendment No. 28A, leave out "not".

Earl Howe: My Lords, although I have tabled Amendment No. 28B, I do not intend to move it.

[Amendment No. 28B not moved.]

LORDS AMENDMENT

29 Clause 15, page 7, line 38, at end insert— "( ) Every NHS foundation trust shall publish a statement of its total income and expenditure relating to the goods and services referred to in subsection (4) in each financial year."
	The Commons disagree to this amendment for the following reason—
	29A Because it is unnecessary.

Lord Warner: My Lords, I beg to move that the House do not insist on its Amendment No. 29 to which the Commons have disagreed for their reason numbered 29A. Again, for the interest of the House, perhaps I may record that the vote in the Commons was 349 for this change and 217 against. So the will of the Commons has been very clearly expressed.
	Moved, That the House do not insist on its Amendment No. 29 to which the Commons have disagreed for their reason numbered 29A.—(Lord Warner.)
	29BLord Clement-Jones had given notice of his intention to move, as an amendment to the Motion that the House do not insist on its Amendment No. 29 to which the Commons have disagreed for their Amendment No. 29A, leave out "not".

Lord Clement-Jones: My Lords, I believe that the Government well understand the need for this particular provision. However, in the circumstances, I do not propose to move the amendment.

[Amendment No. 29B not moved.]
	On Question, Motion agreed to.

LORDS AMENDMENT

56 After Clause 34, insert the following new clause— "Conduct of elections
	(1) Regulations may make provision as to the conduct of elections for membership of the board of governors of an NHS foundation trust.
	(2) The regulations may in particular provide for—
	(a) nomination of candidates and obligations to declare their interests,
	(b) systems and methods of voting, and the allocation of places on the board of governors, at contested elections,
	(c) filling of vacancies,
	(d) supervision of elections,
	(e) election expenses and publicity,
	(f) questioning of elections and the consequences of irregularities. (3) An NHS foundation trust must secure that its constitution is in accordance with regulations under this section.
	(4) Pending the coming into force of regulations under this section, elections for membership of the board of governors of an NHS foundation trust, if contested, must be by secret ballot."
	The Commons agree to this amendment with the following amendment—
	56A Line 12, at end insert—
	"( ) Regulations under this section may create offences punishable on summary conviction with a maximum fine not exceeding level 4 on the standard scale"

Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 56A to Lords Amendment No. 56.
	Moved, That the House do agree with the Commons in their Amendment No. 56A to Lords Amendment No. 56.—(Lord Warner.)

On Question, Motion agreed to.

LORDS AMENDMENT

57 Clause 35, page 14, line 18, leave out from "form" to end of line 19 and insert "of the particulars of his qualification to vote as a member of the constituency for which the election is being held" The Commons agree to this amendment with the following amendment—
	57A Line 2, after "constituency", insert "or class within a constituency"

Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 57A to Lords Amendment No. 57.
	Moved, That the House do agree with the Commons in their Amendment No. 57A to Lords Amendment No. 57.—(Lord Warner.)

On Question, Motion agreed to.

LORDS AMENDMENT

59 Page 14, line 22, leave out "relevant constituency" and insert "constituency for which the election is being held" The Commons agree to this amendment with the following amendment—
	59A Line 1, after "constituency", insert "or class within a constituency"

Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 59A to Lords Amendment No. 59.
	Moved, That the House do agree with the Commons in their Amendment No. 59A to Lords Amendment No. 59.—(Lord Warner.)

On Question, Motion agreed to.

LORDS AMENDMENT

161Leave out Schedule 1 The Commons disagree to this amendment but propose the following amendments to the words so restored to the Bill—
	161A Page 108, line 11, leave out from beginning to end of line 8 on page 109 and insert—

"Eligibility for membership

3 (1) The persons who may become or continue as members of a public benefit corporation are—
	(a) individuals who live in any area specified in the constitution as the area for a public constituency,
	(b) individuals employed by the corporation under a contract of employment and, if the constitution so provides, individuals who exercise functions for the purposes of the corporation otherwise than under a contract of employment with the corporation,
	(c) if the constitution so provides, individuals who have attended any of the corporation's hospitals as either a patient or the carer of a patient within a period specified in the constitution.
	(2) The constitution may specify one or more areas as areas for public constituencies, each of which must be an electoral area for the purposes of local government elections in England and Wales or an area consisting of two or more such electoral areas.
	(3) A person may become or continue as a member of the corporation by virtue of sub-paragraph (1)(b) only if—
	(a) he is employed by the corporation under a contract of employment which has no fixed term or has a fixed term of at least 12 months, or
	(b) he has been continuously employed by the corporation for at least 12 months or, where he exercises functions for the purposes of the corporation as mentioned in that sub-paragraph, he has done so continuously for such a period.
	Chapter 1 of Part 14 of the Employment Rights Act 1996 (c. 18) applies for the purpose of determining whether an individual has been continuously employed by the corporation, or has continuously exercised functions for the purposes of the corporation, as it applies for the purposes of that Act.
	(4) The constitution may divide those who come within sub-paragraph (1)(b) into two or more descriptions of individuals.
	(5) An individual providing care in pursuance of a contract (including a contract of employment), or as a volunteer for a voluntary organisation, does not come within sub-paragraph (1)(c).
	A voluntary organisation is a body, other than a public or local authority, the activities of which are not carried on for profit.
	(6) The constitution may divide those who come within sub-paragraph (1)(c) into three or more descriptions of individuals, one of which is to comprise the carers of patients.
	(7) The constitution may make further provision as to the circumstances in which a person may not become or continue as a member.

Constituencies

4 (1) Members of a public benefit corporation are referred to as follows.
	(2) Those who live in an area specified in the constitution as an area for any public constituency are referred to collectively as a public constituency.
	(3) Those who come within paragraph 3(1)(b) are referred to collectively as the staff constituency and, if the power in paragraph 3(4) is exercised, each description of members is referred to as a class within that constituency.
	(4) Those who come, within paragraph 3(1)(c) are referred to collectively as the patients' constituency and, if the power in paragraph 3(6) is exercised, each description of members is referred to as a class within that constituency.
	(5) A person who is a member of a constituency, or of a class within a constituency, may not while that membership continues be a member of any other constituency or class.
	(6) A person who comes within paragraph 3(1)(b) may not become or continue as a member of any constituency other than the staff constituency.
	5 The constitution is to require a minimum number of members of each constituency or, where there are classes within the constituency, of each class.

Becoming a member

5A (1) An individual who is eligible to become a member of a public benefit corporation may do so on an application made to the corporation.
	(2) The constitution may provide for any individual who is—
	(a) eligible to become a member of the staff constituency, and
	(b) invited by the corporation to become a member of that constituency (and, where there are classes within the constituency, as a member of the appropriate class), to become a member of the corporation as a member of that constituency (and class) without an application being made, unless he informs the corporation that he does not wish to do so.
	(3) The constitution may provide for any individual who is—
	(a) eligible to become a member of the patients' constituency (otherwise than as the carer of a patient), and
	(b) invited by the corporation to become a member of a specified constituency (and where there are classes within the constituency, a member of the specified class), to become a member of the corporation as a member of that constituency (and class) without an application being made, unless he informs the corporation that he does not wish to do so.
	(4) The constituency and, where applicable, class to be specified—
	(a) if he is eligible to be a member of any public constituency, is that constituency,
	(b) otherwise, is the patients' constituency and, where applicable, the class of which he is eligible to become a member"
	161B Page 109, leave out lines 15 to 17 and insert—
	"(4) Members of a constituency or, where there are classes within it, members of each class may elect any of their number to be a member of the board"
	161C Page 109, leave out line 32 and insert "members of the corporation other than those who come within paragraph 3(1)(b)"
	161D Page 109, line 33, at end insert "(or, where there are classes within it, by each class)"
	161E Page 109, line 39, leave out "the area specified under paragraph 3(1)(a)" and insert "an area specified in the constitution as the area for a public constituency"
	161F Page 110, line 1, leave out from beginning to "may" in line 2 and insert "An elected member of the board of governors"
	161G Page 110, leave out lines 4 and 5 and insert—
	"( ) But such a member ceases to hold office if he ceases to be a member of the corporation"
	161H Page 110, line 27, after second "executive", insert "(and accounting officer)"
	161I Page 110, line 29, at end insert—
	"( ) One of the executive directors is to be a registered medical practitioner or a registered dentist (within the meaning of the Dentists Act 1984 (c. 24)); and another is to be a registered nurse or a registered midwife"
	161J Page 110, line 33, leave out "the public constituency" and insert "a public constituency or the patients' constituency"
	161K Page 110, line 43, leave out "the chief executive" and insert "a committee consisting of the chairman, the chief executive and the other non-executive directors"
	161L Page 111, leave out lines 1 and 2 and insert—
	"( ) The appointment of a chief executive requires the approval of the board of governors"
	161M Page 111, line 8, at end insert "but the constitution may make provision for those matters to be decided pending the establishment of such a committee.

Initial directors of former NHS trusts

17A (1) This paragraph applies, where the application for authorisation is made under section 4, to the exercise of the powers mentioned in paragraph 16 to appoint the initial non-executive directors and the initial chief executive.
	(2) The power to appoint the initial chairman of the corporation is to be exercised by appointing the chairman of the NHS trust, if he wishes to be appointed.
	(3) The power to appoint the other initial non-executive directors of the corporation is to be exercised, so far as possible, by appointing any of the non-executive directors of the NHS trust (other than the chairman) who wish to be appointed.
	(4) A person appointed in accordance with sub-paragraph (2) or (3) is to be appointed for the unexpired period of his term of office as chairman or (as the case may be) non-executive director of the NHS trust; but if, on any such appointment, that period is less than 12 months, he is to be appointed for 12 months.
	(5) The power to appoint the initial chief executive of the corporation is to be exercised by appointing the chief officer of the NHS trust, if he wishes to be appointed.
	(6) Sub-paragraphs (a) and (b) of paragraph 15(3) do not apply to the appointment of any initial non-executive director in pursuance of this paragraph; and paragraph 16(4) does not apply to the appointment of the initial chief executive of the corporation in pursuance of sub-paragraph (5)"
	161N Page 111, line 12, at end insert "and, where there are classes within it, the class to which he belongs"
	161O Page 111, line 13, at end insert—
	"( ) a register of interests of the members of the board of governors"
	161P Page 111, line 18, at end insert "members of the board of governors and of"
	161Q Page 111, line 20, leave out from beginning to "available" and insert "A public benefit corporation is to make the following documents"
	161R Page 111, leave out line 25
	161S Page 111, line 32, at end insert—
	"( ) The corporation is also to make the registers mentioned in paragraph 18 available for inspection by members of the public, except in circumstances prescribed by regulations; and, so far as the registers are required to be available—
	(a) they are to be available free of charge at all reasonable times,
	(b) a person who requests it is to be provided with a copy of or extract from them"
	161T Page 111, line 33, leave out "the copy or extract" and insert "a copy or extract under this paragraph"
	161U Page 111, line 38, at end insert—
	"( ) An officer of the Audit Commission may be the auditor if he is appointed by the board with the agreement of the Commission"
	161V Page 112, leave out lines 4 and 5 and insert—
	"( ) Where an officer of the Audit Commission is appointed as auditor, the Commission is to charge the public benefit corporation such fees for his services as will cover the full cost of providing them.
	( ) The corporation is to establish a committee of non-executive directors as an audit committee to perform such monitoring, reviewing and other functions as are appropriate.
	( ) In this paragraph "the Audit Commission" means the Audit Commission for Local Authorities and the National Health Service in England and Wales"
	161W Page 112, line 13, at end insert—
	"( ) If trustees are appointed under section 22, the Comptroller and Auditor General may also examine—
	(a) the accounts kept by the trustees,
	(b) any records relating to them, and
	(c) any report of an auditor on them"
	161X Page 112, leave out line 31 and insert—
	"( ) The constitution is to provide for the functions of the corporation under this paragraph to be delegated to the accounting officer"
	161Y Page 112, line 38, leave out "and the registrar of companies"
	161Z Page 112, line 41, leave out "its public constituency" and insert "any public constituency and (if there is one) of the patients' constituency"
	161AA Page 113, line 2, leave out "him" and insert "it"
	161BB Page 113, leave out lines 6 and 7 and insert—
	"( ) The document containing the information is to be prepared by the directors.
	( ) In preparing the document the directors must have regard to the views of the board of governors"

Lord Warner: My Lords, I beg to move that the House do not insist on its Amendment No. 161 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 161A to 161BB to the words so restored to the Bill. Briefly, I wish to remind the House what I said earlier. The will of the Commons has been expressed in this area. Sensible amendments to this schedule have been discussed and inserted into the schedule, and many people in this House have agreed to those amendments in our debates.
	Moved, That the House do not insist on its Amendment No. 161 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 161A to 161BB to the words so restored to the Bill.—(Lord Warner.)
	161CC Lord Clement-Jones rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 161 and do agree with the Commons in their Amendments Nos. 161A to 161BB to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 161".
	Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 161 and do agree with the Commons in their Amendments Nos. 161A to 161BB to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 161".

On Question, Whether the said amendment (No. 161CC) shall be agreed to?
	Their Lordships divided: Contents, 169; Not-Contents, 100.

Resolved in the affirmative, and amendment agreed to accordingly.
	Motion, as amended, agreed to.

Lord Davies of Oldham: My Lords, I beg to move that the House do adjourn during pleasure until 11.15 p.m. to receive the Commons message on the Criminal Justice Bill. A Business Statement will then be made.
	Moved, That the House do adjourn during pleasure until 11.15 p.m.—(Lord Davies of Oldham.)

Lord Cope of Berkeley: My Lords, it is wise that the House should rise until 11.15 in order to receive the message from the Commons on the Criminal Justice Bill. At that time it would be wise for the House to give time to reflect on the amendments that have been made to the Criminal Justice Bill and are in dispute between the two Houses. I shall therefore seek at 11.15 to move the adjournment of the House for today, so that we might resume discussion of the Criminal Justice Bill and any other outstanding business on the morrow.

Lord Davies of Oldham: My Lords, we are making considerable progress on the Criminal Justice Bill. We intend to make progress on the Health and Social Care (Community Health and Standards) Bill too. It would be unprecedented for the House to adjourn at this stage when the other place is waiting upon our deliberations. Accordingly, I value very greatly the offer made by the Opposition Chief Whip that we should enter into discussions during the adjournment.

On Question, Motion agreed to.
	[The Sitting was suspended from 10.59 to 11.15 p.m.]

Adjournment

Lord Davies of Oldham: My Lords, it is with some regret that I report to the House that the Commons message is slightly delayed. Accordingly, I beg to move that the House do adjourn during pleasure until 11.45 p.m. to receive the Commons message on the Criminal Justice Bill.
	Moved, That the House do adjourn until 11.45 p.m.—(Lord Davies of Oldham.)

Lord Cope of Berkeley: rose to move, as an amendment to the Motion, leave out from "House" to end and insert, "do now adjourn".

Lord Cope of Berkeley: My Lords, if we wait for that message until 11.45 p.m. it means that we shall not be able to start discussion of the Criminal Justice Bill until one o'clock or, probably, later. By the time that we have completed discussion of it and it has gone back it will obviously be three o'clock—or something like that—in the morning. That is particularly late—especially by the standards of the House of Commons these days. We should of course think about the wellbeing of our colleagues at the other end of the Corridor, as well as our own.
	More seriously, as far as I can detect, the various parties seem to have moved close to one another on the Bill on the various outstanding issues. We should, as a House, attempt to facilitate the ability of the Government, Opposition and other parties to come to an agreement about the future and settle it on a Bill about which there has been much controversy.
	I therefore think that it is much better if we adjourn the House today at this point and resume our discussion in the morning. The message is now due between now and 11.45, but it can perfectly well be received if the House is not sitting—it does not require the House to be sitting for the Clerks to do their necessary work on it—so that when we return tomorrow morning at eleven o'clock for Questions, we could then proceed to discuss it in a proper manner.
	Meanwhile, the parties will have had a better opportunity to discuss and reach agreement on the outstanding issues. If not, they could, in my view, be settled quickly by votes tomorrow and the Bill would proceed, or not, by virtue of the decisions of both Houses. So I think that it is better if the House adjourns until tomorrow—in the interests of the Commons, good government and arriving at sensible legislation; which we all want. I am not sure whether I need to move an amendment that we should adjourn now for the evening, as opposed to adjourning until 11.45 p.m.
	Moved, as an amendment to the Motion, leave out from "House" to end and insert, "do now adjourn".—(Lord Cope of Berkeley.)

Lord Graham of Edmonton: My Lords, I very much hope that the House will not now adjourn. Everything has a precedent and I hope that the current situation has occurred during the past 100 years or so. I have not been here for all that time, but I am somewhat puzzled that the noble Lord, Lord Cope, with his troops here and with his troops in the other place who all predicted tonight going well into the night and into the morning, should find what I can only believe is a political reason for choosing not to proceed as we have before. The puzzle is that Members on the Opposition Benches and these Benches were told, not only that it would be a very late night, but that the sitting would run well into the morning, so we are here to do our business. We know the score and the arithmetic of what would happen: the wholly unelected House, the House of Lords, would be dictating to the elected House. We do not intend that that should last much longer, but it is the current situation.

Noble Lords: Oh!

Lord Graham of Edmonton: My Lords, I very much hope that that was taken as a threat, as it is the reality. It is a nonsense that the elected House, in trying to do its business, should find that its will is thwarted time and again by a wholly unelected House. I am here to transact the business that the House was told would be dealt with. I see no reason why we should not proceed along the lines that the Government Deputy Chief Whip has suggested.

Lord Roper: My Lords, it would not be useful to prolong the debate, but, in view of the remarks made by the noble Lord, Lord Graham, I must make two points. The noble Lord, Lord Cope, and I have made it clear to the Government Chief Whip throughout the week that it would not be sensible to continue serious business of this House after midnight tonight. We have secured on the Order Paper provision for the House to meet tomorrow, as has the House of Commons. Given that we will have no further business until 1 a.m., it would be appropriate for us to adjourn now.
	The late Leader of the House Lord Williams of Mostyn repeatedly said how foolish it was for this House to carry out business after midnight. At such a time, when we are trying to resolve very difficult political issues, we will get better and more sensible answers if we have time to sleep, to discuss and come back tomorrow with sensible decisions. I hope, therefore, that we can proceed to a vote on the Motion of the noble Lord, Lord Cope.

Lord Carter: My Lords, we should be clear what we are doing. As the noble Lord, Lord Cope, knows well, it is a longstanding convention that the Government adjourn the House. In my five years as Chief Whip, there has been one exception: during the debate on House of Lords reform, which was a special case. That is certainly not the case tonight. During 10 years on the Opposition Front Bench, I cannot remember trying to adjourn the House against the wishes of the Government. Clearly, the Opposition will win tonight, as they have their troops and the Liberal Democrats. But we are pushing our conventions to the limit. It is a clear convention that it is the Government who adjourn the House; they should not be forced to do so by the Opposition.

Lord Davies of Oldham: My Lords, the debate is so important that I wish that the Captain of the Gentlemen-at-Arms, the Chief Whip, were present. Unfortunately, he cannot be here, as he is at Buckingham Palace, at the command of Her Majesty. I wish that he were here, and I might even say that I wish that I were there at this moment. During this short debate, I have had the supreme advantage of hearing contributions from two former Chief Whips on this side of the House, who have spoken with great authority and sense.
	It would be unprecedented if the House adjourned at this stage. We sometimes devalue the issues that occur at this time of the year between this House and the other place by referring to the process as "ping-pong", as if it were a game. By analogy, ping-pong requires two players, and one player at the other end continues to play. Are we, as the unelected House, taking our bat and going home, when the House that represents the people of this country is waiting on our deliberations and decisions?
	I am grateful to the noble Lord, Lord Cope, for drawing attention to the sitting hours of the House of Commons. However, I wish that he had drawn attention to their elected base rather than the conditions under which they work, because it is their elected position that counts at this time. We are the revising body. They are the body required to pass legislation on which they have a mandate. Therefore, let me put it to the House again: if we adjourn, we will be carrying out an unprecedented act. We will have ended ping-pong unilaterally for the first time. It is an unprecedented situation. If the House can act unilaterally in this way, it will cause great concern outside this House and set a most unfortunate precedent for the way in which this House considers its important role of revising legislation. I suggest that we reject the amendment.

Lord Cope of Berkeley: My Lords, the Captain of the Yeomen of the Guard drew attention to the absence of the Captain of the Gentlemen-at-Arms, but I made absolutely no complaint about the absence of the Government Chief Whip. On the contrary, if the state banquet were not proceeding, perhaps the Leader of my party would be standing at this Dispatch Box rather than myself because he is at the same function. I make no complaint about that, but it draws attention to the difficulties of conducting negotiations on this legislation.
	I am sorry that the noble Lord, Lord Graham, did not take me at my word when I said earlier that my desire was to facilitate negotiations between the various parties to try to get the best legislation. I do not think that we would achieve that by dragging things on between the Houses until two, three or four o'clock in the morning. As the Deputy Chief Whip said, we sometimes devalue this process by calling it ping-pong. However, it is a very serious process and it concerns serious issues. The issues on the Criminal Justice Bill are, after all, to do with liberties, such as a fair trial and so forth. Those issues deserve consideration and I hope that we can make more progress before we finally decide the matter.
	I do not think that it is such a great thing to postpone further deliberations until tomorrow. As the noble Lord, Lord Roper, said, all sides have always envisaged that. Business was predicated on the basis that we might sit tomorrow and that we might have business to deal with tomorrow. That is a sensible time to do it. I beg to move.

Lord Davies of Coity: My Lords, before the noble Lord sits down, I have listened to the comments made by the noble Lords, Lord Carter and Lord Graham, who said that this situation is unprecedented. I also heard it said that only the Government have the opportunity to adjourn. Do the Opposition have the constitutional right to move an adjournment in the circumstances?

Lord Cope of Berkeley: My Lords, we have the absolute right under the rules of the House to move the adjournment. We do not decide the adjournment. The Government do not decide the adjournment. The House decides the adjournment. That is how things work every day. Of course, on most days I am glad to say that we succeed in reaching agreement through the usual channels and I am grateful for the co-operation. Occasionally however, that is not possible. This situation is not unprecedented as the noble Lord, Lord Graham, suggested, and it is certainly within the rules. The House will decide as it ordinarily does. I am sorry that it has not been possible to reach agreement between the usual channels on these matters, but when great issues are at stake and we are in a difficult situation—which is not an everyday situation as far as your Lordships are concerned—the House must decide what to do.

On Question, Whether the amendment shall be agreed to?
	Their Lordships divided: Contents, 148; Not-Contents, 99.

Resolved in the affirmative, and amendment agreed to accordingly.
	Motion, as amended, agreed to.
	House adjourned at twenty-one minutes before midnight.